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.Read More ...
TagsShareMonday July 03, 2006
From a political perspective, last week's incident is only the latest
example of significant public outcry when the lawful access proposals
attract attention from the mainstream media. Over the past year, there
have been a growing number of editorials cautioning against legislation
that would increase Internet surveillance yet decrease judicial
If lawful access legislation reemerges, the fallout is likely to extend
beyond the political arena to the network providers themselves. As
Canadians react to the lawful access proposals, many will want to see
network providers supporting their privacy interests. To date that has
not occurred, since those same providers have been perceived to be more
concerned with the financial costs associated with lawful access (the
Ottawa rumour mill suggests that the Conservative government will
commit tens of millions of dollars to the lawful access program to
address those cost concerns).
The need for Canada's network providers to stand behind their
customers' privacy interests extends beyond lawful access. With a
review of Canada's federal privacy legislation set for later this year,
Canadians may also begin to ask why some network providers disclose
subscriber information to law enforcement without a court order,
relying instead on an exception found within the federal privacy law.
Internet use has become an integral part of daily life, serving as the
foundation for daily communication, commerce, education, and
entertainment for millions of Canadians. Internet service providers
stand as the gatekeepers of the enormous amount of personal information
that is a by-product of that activity. Experience suggests that
Canadians want their ISPs not only to protect that data, but to
actively support their privacy interests as well.
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.Read More ...
TagsShareMonday June 26, 2006
First, there is some doubt that CRA is a group that needs government funding for lobbying purposes. While several of its smaller members could undoubtedly use the support, larger collectives such as Access Copyright and SOCAN already employ external lobbyists with millions of dollars budgeted for copyright regulatory hearings and reform.
The structure of the contract itself appears to have raised some eyebrows within Canadian Heritage. As the funding was being considered, an internal memo noted that the Copyright Policy Branch "would be funding an organization through this contract to provide comments on government policy. There is a concern that the Copyright Policy Branch would be setting an unwanted precedent in such matters." To address that issue, a different branch within the same Cultural Affairs department administers the contract.
Internal correspondence also reveals that the contract was designed to further the department's own policy objectives. A senior official outlined the rationale behind the proposed contract, stating in an email that once the CRA funding was complete, "we should have streamlined, stable funding to an organization whose structure, purpose and activities suit our own policy needs."
Those activities were clearly identified in an email to Canadian Heritage from CRA's co-chair who commented that "the job of taking on the educational sector on copyright reform is clearly a huge and major undertaking," adding that education was a "well heeled, publicly funded lobby. . . devoted to abolishing creators' rights on the Internet."
The column concludes by arguing that given the need for the government to take all stakeholders into account, public financial support for groups that lack the resources to have their voice heard may be necessary. A transparent program that would allow groups to apply for financial assistance would enhance the policy making process and would be consistent with the Conservatives' focus on accountability. The Canadian Heritage - CRA contract does not meet those standards of openness and accountability. If Canada is to achieve a balanced approach on copyright matters, policy makers must offer programs whose goals are not to advance a particular policy agenda, but rather to foster policies in the interests of all Canadians.
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.TagsShareTuesday June 13, 2006
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.Read More ...
TagsShareSunday June 11, 2006
In the weeks following the Dyer email, CRIA worked closely with Canadian Heritage to develop the copyright policy event. An invitation, drafted with CRIA's assistance, was extended to seven different government departments and agencies. Dyer also warned that CRIA would be coming to Ottawa with a financial request. The music lobby group was planning a study on the Canadian music industry and was seeking $50,000 in funding from Canadian Heritage to help support the project.
Twenty government officials, representing Canadian Heritage, Industry, International Trade, Justice, the Competition Bureau, Copyright Board of Canada, and Privy Council Office, gathered in the boardroom of Deputy Minister Judith LaRocque for a two-hour presentation that criticized prior Canadian copyright reform efforts and urged the government to adopt laws similar to those enacted in the United States.
After the formal presentations, the speakers, CRIA executives Graham Henderson and Richard Pfohl, Dyer, and Assistant Deputy Ministers from Canadian Heritage, Industry, and International Trade enjoyed lunch and drinks at Canadian Heritage's expense in a private dining room at Le Panache restaurant. The speakers and CRIA personnel, joined by a photographer to commemorate the occasion, later returned to Canadian Heritage for a private meeting with Minister Bev Oda.
During the last federal election, former Canadian Heritage Parliamentary Secretary Sarmite Bulte found herself in the eye of a political storm after it was revealed that the leaders of several copyright lobby groups, including CRIA, were hosting a fundraiser on her behalf just four days before voters were set to go to the polls. Given that controversy, it is astonishing to find that just days later the same lobby groups were back planning private events for government officials.
The column concludes by noting that in recent weeks, several groups, including the Canadian Federation of Students, the newly-formed Canadian Music Creators Coalition, Appropriation Art: A Coalition of Arts Professionals, and the privacy community, have stepped forward to publicly call for a balanced approach to copyright reform that puts the interests of Canadians and Canadian artists first. Lobbyist-backed closed door meetings and private lunches at taxpayers' expense do little to instill confidence that those calls are indeed being heard.
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? Read More ...
TagsShareMonday June 05, 2006
Apple argued that they are not, maintaining that the sites were not
engaged in "legitimate journalistic activities" and that online
journalists "were not among the class of journalists protected by the
The court roundly rejected both arguments. It first concluded that
there was "no workable test or principle that would distinguish
'legitimate' from 'illegitimate' news," adding that the statute is
"intended to protect the gathering and dissemination of news", which is
precisely what the online sites were doing.
The court was similarly supportive of the proposition that online
journalists should be entitled to constitutional protections, stating
that "we can see no sustainable basis to distinguish petitioners [the
online journalists] from the reporters, editors, and publishers who
provide news to the public through traditional print and broadcast
media. It is established without contradiction that they gather,
select, and prepare, for purposes of publication to a mass audience,
information about current events of interest and concern to that
The reverberations from the Apple case may soon resonate in Canada,
particularly given the recent spate of lawsuits against Canadian online
news sites including suits against OpenPolitics.ca and P2Pnet.net.
The premise of press-specific legal protections is that journalists do
more than just inform - they keep our leaders and institutions
accountable to the public. In order to persuade sources to reveal
information hidden from view, they depend upon assurances of absolute
The California court examined the state of online journalism and found
that it too deserves the legal protections crafted for the press. In
doing so, it has extended those protections to everyone, effectively
stating that we can all play a role in keeping our leaders
accountable. We are all journalists now.
Apology to Wayne Crookes
In August 2006, a message was posted on this blog by a third party that wrongly defamed Wayne Crookes. When I learnt of this I removed it, however, it was later reposted and regrettably, I neglected to remove it promptly after I was advised of the reposting. I apologize completely for any embarrassment or distress that I may have caused Mr. Crookes. Mr. Crookes is a distinguished businessman in the province of British Columbia. He is the founder of West Coast Title Search Ltd, a pre-eminent legal services firm in B.C., and his company has provided trustworthy services to innumerable companies and individuals since 1969.
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.Read More ...
TagsShareMonday May 29, 2006
First, who will be on the task force? It is essential that the task
force include representation from both privacy and civil liberties
Second, what other legislation could be introduced in such an
environment? With a cyber-security task force on the way, speculation
will increase that the Conservative government is also preparing to
bring back so-called "lawful access" legislation.
Third, how will Canadians be protected against online fraud and other
Internet-based criminal activity? The National Task Force on Spam, expressed concerns about the ineffectiveness of
Canadian law to counter spam, phishing, and spyware. It recommended
that the government introduce new legislation to help prevent such
activities, which have been closely linked with identity theft, massive
consumer losses, as well as reduced confidence in e-commerce and
Given the growing reliance on Internet communications, the move to
address cyber-security issues is long overdue. In tackling the issue,
however, the government should ensure that privacy, civil liberties,
and consumer protection considerations are included in the discussions.
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.Read More ...
TagsShareThursday May 25, 2006
It begins by stating that "there is little doubt that the Canadian sound recording sector has undergone significant change in the past several years, primarily as a result of illegal music downloading (or peer to peer file sharing) and the consequent impact on the sale of recorded music."
Incredibly, the report's authors marshal no economic evidence to support this unequivocal assertion nor do they offer any legal analysis to back up the claim that peer-to-peer downloading is illegal in Canada. In fact, the study undermines its own credibility by ignoring evidence that the changes in retail distribution channels, the decline of radio, and competition from other consumer entertainment products such as DVDs and video games are primarily to blame for dropping sales.
Regardless of the reason, the report's authors were clearly surprised when the economic data contradicted their stated thesis. Warning that "these findings should be treated with caution", the study reports that the Canadian sound recording industry grew steadily from 1999 to 2004, with the GDP contribution jumping from $243 million to $387 million.
The report implausibly attributes the increase to reduced employment, noting that there may be greater efficiencies due to a reduction in the number of record labels and the consolidation of the major multinationals.
Given that a ten percent reduction in employment is unlikely to inject an extra $150 million into the Canadian economy, the report's authors might instead have considered the fact that Canadian music labels have enjoyed unprecedented success in recent years. With the major foreign multinationals reporting 20 percent employment reductions, the data suggests that Canadian record companies, who are responsible for 90 percent of new Canadian releases, are providing a counterbalance to the multinationals' struggles.
The 93-page report should be required reading for those involved in the copyright reform - hopefully Canadian Heritage will move quickly to make the full study readily available on its website.
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. Read More ...
TagsShareMonday May 22, 2006
According to U.S. government documents released last week under a Freedom to Information Act request, U.S. officials quickly recognized the sensitivity associated with the new extension and considered whether it could influence the process. Those concerns grew as several groups actively opposed the new domain extension with letter writing campaigns that generated thousands of critical letters and emails.
Faced with a brewing domestic political issue, the U.S. government urged ICANN to delay final approval to allow for an extensive global consultation. In the months that followed, several other countries voiced opposition to the new domain extension. The ICANN board raised several concerns with the dot-xxx backers, who repeatedly adjusted their proposal in response.
Despite the changes, a divided ICANN board ultimately voted nine to five against the establishment of the dot-xxx domain. In caving to U.S. pressure, ICANN may have traded short-term gain for long-term pain. In the short-term, ICANN has staved off immediate government pressure and has likely ensured continuing support from the U.S. government. In fact, late last week the U.S. government announced that it planned to renew one of its ICANN agreements for an additional five years.
Looking ahead, however, proponents of a multi-lateral Internet governance framework will cite this case as a classic illustration of why the ICANN approach must be altered to ensure transparency, independence, and to better reflect the needs of the global community.
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. TagsShareMonday May 15, 2006
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. TagsShareThursday May 11, 2006