The column begins by discussing the public domain. For copyright watchers, New Year's Day has become public domain day, the day when the term of copyright expires on thousands of works. While Europe celebrated the entry of James Joyce and Virginia Woolf into their public domain, Canadians noted that both authors’ copyright expired here in 1991. The term of copyright in Canada is consistent with the international standard of life of the author plus 50 years, which this year meant that the works of Ernest Hemingway and Carl Jung entered into the public domain, twenty years before they are scheduled to do so in Europe or the United States.

The Trans Pacific Partnership Agreement may place the difference in copyright term in jeopardy (a recent leaked draft indicates that it mandates extending the term of copyright), but for the moment it provides Canada with an important competitive advantage. Canadian businesses, creators and educators can rely on a far larger public domain than competitors in the U.S. and Europe, leading to new creative and commercial opportunities as well as increased access for teachers and students.

While the government has framed Bill C-11 as a policy effort to strike the right copyright balance, a crucial question in light of Prime Minister Stephen Harper’s emphasis on the Canadian economy is whether the bill uses the flexibility at international law to establish a competitive advantage when compared to our trading partners.

The answer is a mixed bag. The bill contains several unique Canadian proposals that should create some legal advantages. For example, the approach to Internet provider liability, known as notice-and-notice, strikes a better balance than the U.S. notice-and-takedown system, making Canada an attractive home for hosting Internet content. Similarly, the user generated content provision, which legalizes non-commercial remix videos, provides legal certainty to intermediaries that host content and those that create it. Rights holders have also pointed to the “enabler provision” as a made-in-Canada approach to assist enforcement efforts, though are now seeking a far broader rule.

Bill C-11’s approach to fair dealing leaves Canada in the mushy middle when it comes to copyright exceptions and limitations. The inclusion of three new exceptions – education, parody, and satire - is an improvement, but it does not go as far as trading partners such as the U.S. and Israel, which have both recognized that fair use lies at the heart of many industries that rely upon a flexible copyright system. The absence of fair use creates a competitive disadvantage for innovative Canadian businesses, who may decide to set up shop elsewhere as a result.

The biggest competitive shortcoming in Bill C-11 is also the most heavily criticized – the digital lock rules. While the criticism from consumer, education, and library groups is noteworthy, the lack of support from business and creators groups is particularly telling.

On the business side, the Business Coalition for Balanced Copyright, which includes leading technology, telecom, and Internet companies, has argued for changes to the rules, as has the Retail Council of Canada, which fears that the changes could hurt consumer confidence in the digital environment.

The Bill C-11 digital lock rules will also place some Canadian creators at a competitive disadvantage. For example, documentary filmmakers in the U.S. rely on a specific exception that permits circumvention of digital locks found on DVDs. By contrast, the Canadian approach does not feature a DVD circumvention exception, creating additional costs and legal uncertainty.

Supporters argue that the digital lock rules will create incentives for new media businesses, yet there is little evidence those rules provide a competitive advantage. Without any digital lock rules, Canadian digital music sales have grown faster than those in the U.S. for the past five consecutive years, Canadian entertainment software businesses have thrived, and a steady stream of new digital businesses such as Netflix and Rdio have entered the Canadian market, suggesting that the current law is not holding back new marketplace entrants or commercial success.  

Copyright reform may be driven by a desire to meet international standards, but global copyright law provides all countries with considerable flexibility in implementation. Identifying opportunities to create Canadian copyright competitive advantages would bring commercial and creative benefits and though Bill C-11 features several unique provisions, they are undermined by badly missing the mark on the digital lock rules. 

Topping the list is whether the government tinkers with the auction framework to help foster greater marketplace competition. Some of the large incumbents unsurprisingly favour an “open auction” with no bidding limits, but assuming Paradis concludes that some measures are needed, the choice will likely come down to either a spectrum set-aside that reserves some spectrum for new entrants and smaller companies or spectrum caps.

The last spectrum auction included a set-aside, which opened the door to a handful of new competitors such as Globalive, PublicMobile, and Mobilicity. A further set-aside may make sense since this round of new entrants may look to use the spectrum primarily for wireless broadband services, providing a potential alternative to the cable and telecom dominance.

If another set-aside proves too unwieldy, a spectrum cap, which would limit the amount of spectrum any single company could hold, may emerge as the alternative. A spectrum cap might prove effective if combined with two additional conditions.

First, the implementation of a use-it-or-lose it principle that would require all bidders to use the spectrum within a defined period. The use-it-or-lose-it approach would help guard against the hoarding of spectrum, particularly for incumbents who may overbid in the hopes of keeping new competitors out of the market.

Second, safeguards against opportunistic flipping of the spectrum with the prohibition on its sale within the first five years of the auction. The trio of policies – caps, mandatory use, and a block on transfer, may increase the number of successful bidders.

Another critical issue is who should be entitled to bid for the spectrum. The last spectrum auction featured Canadian ownership requirements, thereby limiting potential entrants. Given that Canada is one of the only developed countries that has retained significant telecom foreign ownership restrictions, the auction provides a tailor-made opportunity to eliminate the restrictions by opening the market to all bidders.

The spectrum policy decision will also determine which spectrum is available for auction and which is reserved for alternate purposes. The government has already indicated that it plans to grant some of the spectrum to law enforcement agencies, which intend to create their own emergency wireless network.

Many leading technology companies have recommended allocating some of the spectrum for unlicensed purposes. This spectrum, which would be free to anyone to use without the need for licence or government approval, could yield new services and technologies.

Beyond the technical details of the spectrum auction, the final billion-dollar question is what the government should do with the auction proceeds. While the $4 billion in proceeds from the last auction went into general revenues, this auction represents the best – perhaps only – opportunity to access billions of non-tax dollars for the digital economy.  The money could be used to support broadband initiatives, digital content creation, and digital skills programs. 

In 2007, tens of thousands of Canadians used Facebook to register their concern with impending copyright legislation (I launched one of the main groups involved). In response, the government delayed introducing the legislation by six months, during which it added several provisions aimed at pacifying the public criticism.

In 2009, thousands of people in New Zealand launched their own blackout campaign against proposed "three strikes and you're out" copyright legislation that would have led to Internet users losing access based on three allegations of infringement. Users blacked out websites and profiles on Facebook and Twitter. The New Zealand government responded by withdrawing the legislation.

The similarities between the SOPA protest and digital activism in other countries does not end there. In virtually all cases, opponents dismiss protesters as pirates or pawns (or in the case of Canadian Heritage Minister James Moore, "radical extremists") who lack a genuine understanding of the issues.

Yet the Motion Picture Association of America is happy to trot out well-known movie stars with little copyright law familiarity since they are guaranteed to garner attention. Moreover, during earlier SOPA hearings, several politicians seemed to take pride in their lack of technical knowledge and experience.  

The MPAA called the protests "an abuse of power" by platforms that serve as gateways to information, a particularly rich claim coming from a group that once threatened to delay screening movies in Canada unless it passed new copyright rules and still requires its customers to sit through unskippable anti-piracy messages at the beginning of movies on DVDs or at the theatre.

Most troubling were lobbyists who lamented the politicians' shifting policy positions due to the popular protest, as if their own preferred approach of spending millions on campaign contributions is somehow a more democratic method of lawmaking.

It may be tempting for SOPA protesters to declare victory, but history teaches that political wins are rarely absolute.  The current Canadian legislation, Bill C-11, is much more balanced than the 2007 proposal, but the digital lock provisions that sparked the initial protest remain largely unchanged. In New Zealand, the government later introduced a more balanced bill with greater safeguards, but the prospect of terminating Internet access was not completely eliminated.

SOPA appears to be headed for the dustbin, but successor U.S. legislation is sure to follow. A political consensus on anti-piracy legislation will eventually emerge, but the day the Internet fought back will remain the elephant in the room for years to come.

There have been questions about the constitutionality of PIPEDA, Canada’s private sector privacy law, since its inception. Quebec launched a constitutional challenge in 2003, pointing to its longstanding provincial privacy statute and the constitutional limitations on a federal privacy statute. The Quebec challenge has remained dormant for many years, but State Farm Insurance revived the issue in a privacy case in 2010.

The Supreme Court decision seems likely to stoke the fires for a constitutional challenge, particularly given the Privacy Commissioner's call for stronger enforcement powers. Indeed, the prospect of a challenge may hamper the Commissioner’s enforcement efforts as companies reluctant to comply with Commissioner findings may opt to challenge the validity of the legislation instead.

PIPEDA is not the only digital law placed at risk by the Supreme Court decision. Anti-spam legislation, which is still awaiting final regulations before taking effect, may face similar questions since it too relies heavily on the trade and commerce clause.

The decision also places the spotlight on the constitutional questions that have dogged Bill C-11, the copyright reform bill. Those questions do not arise from the trade and commerce clause, but rather involve similar questions about whether the digital lock rules move too far away from conventional copyright law (a federal power) by encroaching into provincial jurisdiction over property and civil rights.

The government's own analysis of the bill obtained under the Access to Information Act confirms that the digital lock rules envision potential violations of copyright even when there is no copyright infringement. By removing the link to actual copyright infringement (breach of the digital lock rules may occur without a copyright infringement and without regard for traditional copyright defences), the law ventures into the provincial domain over property and civil rights.

The Supreme Court decision throws a monkey wrench into more than just plans to create a single securities regulator.  It may also hamper the development of a single national digital legal strategy. This suggests a need to rethink the digital lock rules, and engage the provinces on digital legal issues sooner rather than later.

March. Canada and the European Union reach a preliminary agreement on a major new trade agreement. While much of the attention is directed toward the implications for the agricultural sector, Canada quietly caves on patent issues that may add billions to pharmaceutical costs. Meanwhile, Canada formalizes its open government commitment at a global meeting in Brazil.

April. After months of delays, lawful access legislation is introduced. The new bill consolidates the three earlier lawful access bills but leaves the substance unchanged, rejecting widespread criticism over plans to mandate new surveillance technologies and mandated disclosure of personal information.

May. The CRTC conducts another fact-finding exercise on the impact of over-the-top video services such as Netflix. The exercise fuels hope among some groups of new regulatory requirements for online video providers, but the CRTC ultimately decides to delay any new action until the conclusion of the next round of new media hearings planned for 2013.

June. Bill C-11, the copyright reform bill, passes the House of Commons with few changes from its original form. All opposition parties vote against the legislation. The bill still requires Senate approval, but stakeholders begin thinking about the courts as copyright holders explore enforcement lawsuits, consumer groups consider a constitutional challenge to the digital lock rules, and some creator groups entertain legal action on the limits on fair dealing.

July. Nearly one year after proposing anti-spam regulations, the government unveils modified regulations and seeks further public comment before the law takes effect. The new regulations establish a series of new exceptions to the law consistent with the demands of several marketing groups.

August. Rogers Communications, the last major Canadian ISP to use traffic shaping tools to restrict the use of peer-to-peer technologies, drops its approach several months after a CRTC net neutrality enforcement action concludes it is violating Internet traffic management regulations.

September. Canada gains entry to the Trans Pacific Partnership trade negotiations after it signals its willingness to consider reforms to all sectors of the economy. The TPP negotiations raise the possibility of a massive overhaul of Canadian intellectual property rules.

October. The Supreme Court of Canada releases its much-anticipated set of five copyright rulings. The court sides with Apple and Canadian telecom companies in concluding that music previews may be treated as consumer research for the purposes of fair dealing, rejects SOCAN’s bid for compensation for the music found in downloaded video games, and confirms Access Copyright’s demand for payment for classroom copies.

November. Bill C-11 receives Senate approval, becoming the first major copyright bill passed in Canada in nearly 15 years. The decision immediately renders some of the new Supreme Court copyright decisions moot.

December. The constitutionality of PIPEDA, Canada’s private sector privacy law, receives its stiffest test as companies facing tougher enforcement demands by Canadian Privacy Commissioner Jennifer Stoddart opt to challenge the validity of the law in light of the Supreme Court’s December 2011 decision on a national securities regulator.

D is for the digital television transition, which finally occurred on August 31st.

E is for eHarmony, the online dating site that was the subject of a privacy commissioner investigation leading to changes to its customer data deletion practices.

F is for false news, which erupted as a controversy after the CRTC quietly proposed a significant change to the rules on false or misleading news broadcasts on radio or television.

G is for Adam Guerbuez, the Montreal-based spammer who mocked the government as it delayed finalizing anti-spam regulations that are needed to bring the law into effect.

H is for Hurt Locker lawsuits, which made their way to Canada with dozens of file sharing legal actions launched against individuals in Quebec.

I is for the iPod tax, which surprisingly emerged as an election issue during the spring campaign.

J is for Jon Newton, whose case on liability for hyperlinking led to a landmark Supreme Court of Canada decision against creating such liability.

K is for Jason Koblovsky, the founder of the Canadian Gamers Organization, which filed a complaint against Rogers Communications over interference with online games arising from its throttling practices.  

L is for Leon’s Furniture, which successfully argued that a vehicle licence number is not "personal information" within the context of Canadian privacy law because it is not about an individual.

M is for misleading advertising, which the Competition Bureau aggressively pursued in a claim against Bell. Bell agreed to pay $10 million, the maximum permitted under the Competition Act, and cover $100,000 in investigation expenses.

N is for Netflix, which fuelled a contentious regulatory battle at the CRTC on the implications of over-the-top video services.

O is for Open Media, the Vancouver-based advocacy group that spearheaded the fight against Internet provider usage based billing practices.

P is for Industry Minister Christian Paradis’s Penske File, the long-lost digital economy strategy that languished in 2011.

Q is for Telus Communications v. Queen, a case headed to the Supreme Court over the issue of whether police can use a general warrant to intercept SMS text messages.

R is for the Royal Bank of Canada, which was ordered to pay $4,500 for violating Canadian privacy laws in the disclosure of account information to a spouse embroiled in a bitter divorce proceeding.

S is for security breach disclosure legislation, which was re-introduced in Bill C-12.

T is for the twittering Treasury Board, which released Guidelines for External Use of Web 2.0, offering specific guidance on the use of social media and other Web 2.0 tools by government departments.

U is for Universal Music Canada, one of several major record labels to settle the largest copyright class action lawsuit in Canadian history. The labels agreed to pay more than $50 million to settle claims that they used sound recordings without paying the applicable royalties.

V is for vertical integration rules, which restrict the ability of newly converged broadcast and telecom companies to establish exclusive arrangements for popular content.

W is for the warrantless disclosure of customer information, one of the most troubling aspects of forthcoming lawful access legislation.

X is for Xplornet Communications, the satellite Internet provider that was the source of the longest running net neutrality complaint at the CRTC.

Y is for York University, one of dozens of Canadian universities that opted-out of the Access Copyright licence for copying materials on campus.

Z is for Zarek Taylor Grossman Hanrahan LLP, a law firm that was found to have violated Canadian privacy law by posting on its website a previous report of findings from the Privacy Commissioner of Canada along with a cover letter that identified the complainant.

In fact, it isn’t only Canadian courts, privacy commissioners, and civil liberties groups that believe striking the right balance on the issue necessitates requiring a warrant. Former Conservative Public Safety Minister Stockwell Day stated in 2007 that "we have not and we will not be proposing legislation to grant police the power to get information from Internet companies without a warrant. That's never been a proposal. It may make some investigations more difficult, but our expectation is rights to our privacy are such that we do not plan, nor will we have in place, something that would allow the police to get that information."

Toews will also claim the changes are necessary to ensure that Canadian law enforcement has the tools it needs to combat online crime threats. While everyone agrees that the law must stay up-to-date with emerging technologies, neither the government nor law enforcement has provided credible evidence demonstrating how the current law has impeded active investigations.

One of the only attempts at providing evidence came in 2009 from Toews' predecessor, former Conservative Public Safety Minister Peter Van Loan. Van Loan pointed to a 2009 kidnapping case in Vancouver as evidence of the need for legislative change, describing witnessing an emergency situation in which Vancouver police waited 36 hours to get the information they needed in order to obtain a warrant for customer name and address information. That sounds like a credible case, but according to documents obtained under access to information, no Internet provider records were actually sought during the investigation.

While Toews will focus on the need to address online threats, he will likely avoid admitting that lawful access will come at an enormous cost. Some smaller Internet providers have warned that they may be forced to shut down if faced with requirements to install costly surveillance technologies with no ability to recoup the investment. Lawful access would not only lead to lost jobs at the affected companies, but the loss of competition could lead to higher Internet costs for all Canadians at the very time Industry Minister Christian Paradis has promised "globally competitive prices for consumers."

Canadians deserve better than deceptive claims and divisive name-calling. They deserve real judicial oversight before their personal information is disclosed and, given the costs (financial and otherwise), they deserve a full accounting on why lawful access is needed.

The first involves the scope of fair dealing. In 2004, the Supreme Court ruled that fair dealing, which is the Canadian equivalent of U.S. fair use, is a "user's right" that should be interpreted in a broad and liberal fashion.

At least two cases will test the boundaries of that decision. In Bell v. SOCAN, the court will be asked to consider whether song music previews on sites such as iTunes can be treated as consumer research and thus potentially qualify as fair dealing. SOCAN, the music copyright collective, argues that it should be paid for the previews.

A second case involving Access Copyright will address fair dealing from the perspective of copying materials in schools for classroom use. This long-running case, which involves the fees paid by kindergarten to Grade 12 schools, also hinges on the scope of fair dealing. Access Copyright and its supporting interveners want the court to rollback its broad interpretation, arguing that fair dealing isn't a user right at all and that using this term merely confuses the issue.  

The second big issue involves the layering of rights in Canada that often forces businesses to pay multiple times for the use of a single work. For example, the ESAC case involves a dispute with SOCAN over whether downloading a video game is a "communication to the public" under the Copyright Act of the music embedded in the game (a similar issue involving music downloads is raised in another case involving Rogers Communications and SOCAN).

The ESAC, which finds itself in the role of user of music in this case, maintains the download is not a communication to the public and expresses concern that to take the alternate approach would "create an extra layer of rights that only applies to the distribution of copies of works." It warns that requiring payments for the Internet download of a video game would create extra payments "simply because a copy of digital content is delivered over the Internet as a download rather than in physical form."

The ESAC argues that copyright should be technology neutral in its approach. Ironically, the organization adopts the opposite position when it comes to Canadian copyright reform, as it currently advocates for a two-tier legal framework that grants greater rights for works that include a digital lock.  Its lobbying on copyright reform – along with proposed changes in Bill C-11 that will affect the issue of communication to the public – serve as a reminder that the focus may be on the Supreme Court this week, but soon after Parliament will once again grab the copyright spotlight.

Most of Canada's trading partners have had digital economy strategies in place for years, using the policies to set goals for connectivity, guide investments in networks and digital infrastructure, as well as establish legal frameworks to provide privacy protection and enhance consumer confidence in electronic commerce.

Canada has lagged behind with no real policy direction. In May 2010, then-Industry Minister Tony Clement conducted a national consultation on the issue, yet 18 months later, there is still no strategy in sight. There has admittedly been an election and a cabinet shuffle, but as Canada dithers, other countries move ahead with a broad range of initiatives.  

Countries such as Japan, Germany, and Australia have all established ambitious targets for broadband connectivity, employing a mix of public dollars and regulatory incentives with the goal of establishing universal access to affordable, fast connectivity. The Canadian Radio-television and Telecommunications Commission has set a target of universal access to 5 Mbps broadband by 2015, but a report last week indicated that hundreds of thousands of Canadian households currently only have access to much slower speeds.

In the United States, the Federal Communications Commission recently teamed up with cable and technology companies to launch Connect-to-Compete, which promises to bring computers and Internet access to low-income households.  The program includes a commitment from the cable companies to offer to $10 a month broadband Internet access to homes with children that are eligible for free school lunches. Moreover, Microsoft has committed to offering low-cost personal computers and Morgan Stanley has pledged to develop a microfinance lending program for community-based financial institutions.

Digital strategies are not limited fostering greater Internet access. In Europe, the European Commission recently adopted a recommendation on digitization that will lead to investing billions in digitization initiatives. The strategy includes a plan to make 30 million works freely available online as well as develop legal frameworks to facilitate greater access to online materials.

Ireland has focused on copyright reform as a means to jumpstart its digital economy.  Unlike Canada, which has emphasized restrictive digital locks, Richard Bruton, the Irish Minister for Jobs, Enterprise and Innovation, has promised to remove barriers to digital innovation by considering greater copyright flexibility through the adoption of a fair use provision.

The net effect of these initiatives is that other countries have stopped talking about digital economy strategies and actually introduced and implemented them. In Canada, the opposite is true.

Plans for the forthcoming spectrum auction, which holds the promise of injecting new competition into the wireless and mobile broadband markets, remains shrouded in secrecy. Legislative initiatives such as new privacy rules are stuck in neutral in the House of Commons. Anti-spam laws are in limbo as the government may cave to lobbying pressure to water down tough new penalties.

Few would dispute the need for a national digital economy strategy, yet in the spirit of Seinfeld, the Canadian approach appears to have turned the matter into a strategy about nothing.