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"Law Bytes" is a weekly column on technology law that appears in several Canadian media outlets including the Toronto Star, Ottawa Citizen, and Canada.com. From 1999 - 2002, I wrote the Cyberlaw column for the Globe and Mail.



Bell Controversy Puts Spotlight on Net Surveillance

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on last week's controversy involving Bell Sympatico and a change to its user agreement.  The Bell clause, which took effect on June 15th, advised subscribers that the company retains the right to "monitor or investigate content or your use of your service provider's networks and to disclose any information necessary to satisfy any laws, regulations or other governmental request."

A widely circulated Canadian Press story (which featured several of my comments), noted that the Conservative government is expected to reintroduce lawful access legislation this fall and speculated that the change might have been in anticipation of that statutory reform.  Many online pundits also chimed in, pointing to the battle over network neutrality in the United States, expressing fears that the Bell change might be designed to pave the way for a two-tier Internet in Canada under which ISPs levy fees on websites to deliver their content.

For its part, Bell swiftly issued a statement emphatically denying that the amendments were linked to lawful access, maintaining that the company had a "a long and established history of protecting the privacy of its customers."

The gist of the column is that regardless of the motivations for the change - whether harmless drafting amendments, lawful access, or network neutrality - the public and media reaction demonstrates how increased Internet surveillance is a political and business minefield that invariably stirs up vociferous opposition.
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Canadian Gov't Pays Copyright Lobby to Lobby

While the Harper government last week passed accountability legislation in the House of Commons, my weekly Law Bytes column (Toronto Star version, homepage version) suggests that another form of lobbying exists that requires closer scrutiny - lobbying that is financed by the government itself.  According to government documents obtained under the Access to Information Act, last fall the Ministry of Canadian Heritage entered into a multi-year agreement with the Creators' Rights Alliance, a national coalition of artists groups and copyright collectives with members both small (the League of Canadian Poets) and large (SOCAN and Access Copyright).  The CRA has eight objectives, which notably include "to ensure that government policy and legislation recognize that copyright is fundamentally about the rights of creators" and "to ensure that international treaties and obligations to which Canada is signatory provide the strongest possible protection for the rights of creators."

The Canadian Heritage - CRA agreement, which could run until 2008 at a total cost of nearly $400,000, appears to be designed primarily to enable the CRA to lobby the government on copyright reform.  In return for $125,000 annually, the CRA provides the Ministry with its views on copyright in the form of comments, analysis or research papers (other deliverables include a policy conference, website communications, and a regular newsletter).

The contract raises several issues.
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Captain Copyright and the Case of the Critical Link

My weekly Law Bytes column (Toronto Star version, homepage version) examines the linking issues associated with Captain Copyright. While the linking policy has gone through several edits, the column argues that it is doubtful that any version  is actually enforceable.  First, it is by no means certain that the terms and conditions associated with the site constitute a binding contract. 

Even if it could be enforced, the specific linking provisions are unlikely to withstand legal scrutiny.  Several courts in both Canada and the United States have addressed the legal issues associated with linking, with most concluding that links do not raise any copyright concerns. In the case of Captain Copyright, it is irrelevant whether the citation comes from a critical blogger or a supportive school board - permission is not needed to link on the Internet and it cannot be denied in legal terms and conditions. 

When Access Copyright chose to freely display its content on the World Wide Web, it surrendered the right to restrict who might link to the site or comment on it. That would be true of any organization, but the principle should resonate particularly strongly with Access Copyright, given that it is a copyright collective whose members rely upon freedom of speech for their livelihoods.  If Captain Copyright teaches us anything, it is that he should be powerful enough to withstand a little criticism.
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CRIA's Lobby Effort: The Untold Story

On the heels of last week's posting on election financial support for Canadian Heritage Minister Bev Oda, the Hill Times runs a special op-ed I've written that focuses on an unreported CRIA lobby effort from earlier this year (Hill Times version, homepage version).  According to information released under the Access to Information Act, at 10:01 in the morning of February 6, 2006, at the precise moment that a new Conservative cabinet was being sworn into office at Rideau Hall, David Dyer, a senior consultant with the Capital Hill Group and a registered lobbyist for the Canadian Recording Industry Association, sent an email to Patricia Neri, the Director General of Canadian Heritage's Copyright Policy Branch. 

The email included a suggested outline for a March 2nd event focused on copyright reform.  It envisioned a meeting with the Canadian Heritage Deputy Minister Judith LaRoque, two hours of presentations from speakers sympathetic to CRIA's position, lunch with deputy ministers from Heritage, Industry, and International Trade, and a private meeting with the soon-to-named Minister of Canadian Heritage.

One month later, virtually the identical scenario played itself out in Canadian Heritage's Gatineau offices and in the private dining room of a swank nearby restaurant.
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We Are All Journalists Now

My weekly Law Bytes column (Toronto Star version, BBC version, homepage version) examines the implications of the recent California appellate court decision involving Apple Computer and two online news sites.  I argue that the implications of the California decision are profound as they may change more than just journalism.   The California appeals court was faced with a novel question - are online journalists entitled to the same legal protections as their offline counterparts? 


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Canada to Launch Cybersecurity Task Force?

My weekly Law Bytes column (Toronto Star version, homepage version) reports that the the Conservative government is preparing to launch a Cyber-Security Task Force.  Although the Ministry of Public Safety and Emergency Preparedness does not list any information about the task force on its site, GEDS, the government's electronic directory service, was recently updated to include a Cybersecurity Task Force Secretariat.  The Secretariat apparently at least includes an Assistant Deputy Minister and a senior policy analyst.

While the move to address shortcomings in Canada's cyber-security framework is welcome, the creation of this task force raises three important issues.
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Sound Numbers

A special edition of my Law Bytes column (Ottawa Citizen version, homepage version) reports on a recent Canadian Heritage commissioned study on the economic impact of the copyright industries. The Connectus Consulting report, entitled The Economic Impact of Canadian Copyright Industries - Sectoral Analysis, has yet to be publicly released.  However, I recently obtained a copy of the final report dated March 31, 2006, under an Access to Information Act request.

The report, which spans 1997 to 2004, finds that the copyright industries comprise 4.5 percent of the Canadian economy and contribute 5.5 percent of total Canadian employment.  While that is expected to increase in the coming years (the copyright industries are growing at a faster rate than the overall economy), it pales in comparison to sectors such as finance, manufacturing, agriculture, education, and health care.

More interesting is a case study on the sound recording industry that contradicts both the industry claims and the expectations of the report's authors.
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Dot-XXX Decision Exposes Cracks in Net Governance System

My weekly Law Bytes column (Toronto Star version, BBC version, homepage version) looks at the recent ICANN decision to reject the creation of a new dot-xxx domain name extension. The year-long debate over whether to approve the adult-oriented domain may have long-term implications for Internet governance since it sparked enormous controversy and provided ample evidence of U.S. government intervention into ICANN matters.

With millions of dollars at stake, the Internet community has relied on ICANN to establish a transparent system for creating new domain name extensions.  The resulting process has left many observers unhappy.  They argue that it is too expensive (application costs alone are now estimated at US$250,000), too cumbersome (creation of the domain name extension may require months of negotiation after preliminary approval is granted), and too subjective (rather than establishing objective criteria, the decisions are fraught with subjective policy choices). 

The prospect of a dot-xxx domain name extension created an immediate firestorm in the United States. 
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CRTC Radio Review Needs to Dial In New Frequency

My weekly LawBytes column (Toronto Star version, homepage version) focuses on the CRTC's Commercial Radio Review.  I argue that missing from the debate is any real vision about how public policy goals to promote Canadian artists and encourage a diverse, financially successful commercial radio market can be adapted to an environment that faces increasing competition from a plethora of new options including webcasts, podcasts, and self-programming iPod users.

Claims that "smart" Cancon requirements that lead to a reduction of Canadian artist airtime clearly does not provide a solution, yet neither do arguments that simply ratchet up Cancon requirements given that Canadians will be listening to less and less music on commercial radio regardless of how much Cancon fills the airwaves.

It may be that there are no obvious solutions at the present time - the Internet is indeed changing at an incredible pace - however, it would help if the industry at least started to ask some of the right questions.  

Why is there so little Canadian content on online music services such as iTunes?  Why is French music from Quebec almost entirely absent from most Canadian online music services?  What policies could be adopted to encourage Canadian content on webcasts and podcasts?  What are the implications of the growing importance of peer-to-peer technologies as a critical method of music promotion and discovery for emerging artists?

While these are difficult questions, they must be asked and answered.  Unfortunately, it appears that this week's hearings will not provide many solutions since the participants are stuck on an entirely different frequency.  
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Canada's Top Court Tips Hand on Privacy

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the recent Supreme Court of Canada Heinz decision which sheds light into how Canada' s top court regards the importance of privacy.  I argue that the decision can be read as an indirect endorsement of the Privacy Commissioner of Canada's longstanding call for changes to the Privacy Act, which applies to the protection of personal information held by government institutions.  Privacy advocates have regularly criticized the statute, dismayed that the government is seemingly unwilling to hold itself to the same standard of privacy protection that it demands of the private sector.

Moreover, when Canada's private sector privacy law is reviewed later this year, the court's acknowledgement of a "lack of teeth" associated with the Privacy Commissioner of Canada is certain to emerge as a major focal point.  Canadians who presently launch complaints against either the government or private sector companies under the current privacy law framework are frequently disappointed to learn that the Commissioner is unable to do anything more than issue a non-binding finding. 
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