Earlier this month, the U.S. government surprised the Internet community
by announcing that it plans to back away from its longstanding
oversight of the Internet domain name system. The move comes more than
15 years after it first announced plans to transfer management of the
so-called IANA function, which includes the power to add new domain name
extensions (such as dot-xxx) and to alter administrative control over
an existing domain name extension (for example, approving the transfer
of the dot-ca domain in 2000 from the University of British Columbia to
the Canadian Internet Registration Authority).
My weekly technology law column (Toronto Star version, homepage version) notes the change is rightly viewed as a major development in the ongoing
battle over Internet governance. Yet a closer look at the why the U.S.
is embarking on the change and what the system might look like once the
transition is complete, suggests that it is not relinquishing much power
anytime soon. Rather, the U.S. has ensured that it will dictate the
terms of any transfer and retain a "super-jurisdiction" for the
Read More ...
TagsShareTuesday March 25, 2014
Day-to-day administration of the domain name system is currently
managed by the Internet Corporation
for Assigned Names and Numbers (ICANN)
, a U.S.-based
non-profit company that operates under a contract with the U.S.
government. Critics argue that this means that the U.S. retains
final authority over key Internet governance decisions.
The United Nations and supporting governments have attempted to
loosen U.S. control on several prior occasions without success.
Despite those failures, the U.S. now voluntarily says it will walk
away from its oversight power, tasking ICANN with developing a
transition plan that must "support and enhance the multistakeholder
model." The U.S. adds that it will not accept a proposal based on a
government-led or an inter-governmental organization solution,
short-circuiting any hopes the U.N. might have had for assuming
Why is the U.S. proposing to walk away now? In recent months,
there has been growing momentum to revisit the issue, triggered by
the Edward Snowden revelations of widespread Internet surveillance.
Although NSA surveillance has no real connection to Internet
governance - the management of the domain name system is not
typically a surveillance target - the issue has galvanized many
countries and groups who sense an opportunity for change. By forcing
the issue, the U.S. has successfully seized the agenda and set the
conditions for a transfer of power.
While a transfer would be perceived by many to represent a change in
control, the reality is that the U.S. will not be relinquishing much
power even when (or if) the transition occurs. In the years since
the U.S. first indicated that it would shift away from Internet
governance, it has steadily erected jurisdictional authority over a
considerable portion of the Internet infrastructure.
For example, in 2009 the U.S. and ICANN entered into an agreement
that institutionalized "the technical coordination of the
Internet's domain name and addressing system." That document
included a commitment for the U.S. to remain involved in the
Governmental Advisory Committee (GAC), the powerful body within
ICANN that allows governments to provide their views on governance
matters. It also contained an ICANN commitment to remain
headquartered in the U.S., effectively ensuring ongoing U.S.
jurisdiction over it.
Not only is the U.S. able to assert jurisdiction over ICANN, but it
has also asserted jurisdiction over all dot-com, dot-net, and
dot-org domain names. In 2012, a U.S. court ordered
the seizure of a dot-com domain that was registered in Canada with
no U.S. connection other than the location of the domain name
registry. This effectively means the U.S. retains jurisdiction over
half of all domain name registrations worldwide regardless of where
they are registered or who manages the system.
The U.S. might transition away from the current model (though the
initial 2015 date seems ambitious), but much of its jurisdictional
power will remain largely unchanged. The latest announcement has the
potential to fulfill a promise made nearly two decades ago, but
skeptics can be forgiven for suspecting that power over Internet
governance will remain firmly rooted in the U.S. no matter how the
issue is resolved.
Last week marked the 25th anniversary of the drafting of Tim
Berners-Lee's proposal to combine hypertext with the Internet that would
later become the World Wide Web. Berners-Lee used the occasion to call
for the creation of a global online "Magna Carta" to protect the rights
of Internet users around the world.
The desire for enforceable global digital rights stands in sharp
contrast to the early days of the Web when advocates were more inclined
to tell governments to stay away from the burgeoning medium. For
example, John Perry Barlow's widely circulated 1996 Declaration of the
Independence of Cyberspace, asked governments to "leave us alone",
claiming that conventional legal concepts did not apply online.
While the notion of a separate "cyberspace" would today strike many as
inconsistent with how the Internet has developed into an integral part
of everyday life, the prospect of a law-free online environment without
government is even more at-odds with current realities. Rather than
opposing government, there is a growing recognition of the need for
governments to ensure that fundamental digital rights are respected.
My weekly technology law column (Toronto Star version, homepage version) notes that building on Berners-Lee's vision of global online protections, the World
Wide Web Foundation, supported by leading non-governmental
organizations from around the world, has launched a "Web We Want"
campaign that aims to foster increased awareness of online digital
rights. The campaign focuses on five principles: affordable access, the
protection of personal user information, freedom of expression, open
infrastructure, and neutral networks that do not discriminate against
content or users.
Read More ...
TagsShareWednesday March 19, 2014
Supporters recognize that global protections are more likely to
develop on a country-by-country basis, with potential domestic
support for national digital bills of rights. In the United Kingdom,
the opposition Liberal Democrats have already thrown
behind a digital bill of rights, while the
United Nations Human Rights Council has backed
declaring Internet access and online freedom of
expression a human right.
With Industry Minister James Moore set to unveil the long-awaited
national digital strategy (reportedly to be dubbed Digital Canada
150), these issues have the potential to play a starring role.
The government has identified universal access as a key issue,
allocating $305 million in the most recent budget for broadband
initiatives in rural and remote communities. While there is
some disagreement on a target date for universal Canadian broadband
- the CRTC has set its goal at 2015, while the federal government is
content with 2019 - there is a consensus that all Canadians should
have affordable broadband access and that there is a role for the
government to make that a reality in communities that the leading
Internet providers have largely ignored.
The protection of personal information raises questions about the
adequacy of current privacy rules and the concerns associated with
widespread surveillance. Industry Canada's Report on Plans and
Priorities for 2014-15 quietly referenced
"modernizing the privacy regime to better protect consumer privacy
online" as a legislative priority for the coming year, the clearest
signal yet that the government plans to re-introduce privacy reform.
The surveillance concerns will undoubtedly prove even more
challenging, with the government saying little about the steady
stream of revelations of government-backed surveillance. The
Canadian role in global surveillance activities and the government's
decision to revive lawful access legislation represent the most
disturbing aspects of online policies that must be addressed for
digital rights leadership.
As the government finally embarks on its digital strategy, it has an
opportunity to do more than just tout recent policy initiatives.
Instead, it should consider linking its goals with the broader
global initiatives to help create the Web we want.
Yesterday, I was contacted by a Toronto radio station wanting to discuss wireless pricing increases that have occurred over the past few months (including increases over
the weekend at both Rogers and Bell). Their key question was what lay behind the
increased prices? While some might point to reduced roaming revenues or
costs associated with the spectrum auction, I believe the answer is far
The carriers increased prices because they can.
Indeed, this is precisely what the Competition Bureau of Canada
concluded could and would happen in its analysis of the wireless environment in Canada. In its
January 29, 2014 submission to the CRTC, it stated:
Read More ...
In the Bureau's view, mobile wireless markets in Canada are
characterized by high concentration and very high barriers to
entry and expansion. Furthermore, Canadian mobile wireless markets
are characterized by other factors that, when combined with high
concentration and very high barriers to entry and expansion,
create a risk of coordinated interaction in these markets. Given
these factors, the Bureau's view is that incumbent service
providers have market power in Canadian retail mobile wireless
TagsShareTuesday March 18, 2014
And what is market power? As the Bureau notes, "market power is 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."
The risk of coordinated action and the ability to profitability
maintain prices above competitive levels? Sounds
The Canadian Copyright Institute, an association of authors and publishers, has released a new paper
that calls on the Canadian education community to stop relying on its
current interpretation of fair dealing and instead negotiate a
collective licence with Access Copyright. The paper was apparently
published in the fall but is being released publicly now since Canadian
education groups have refused to cave to Access Copyright's demands.
The CCI document, which raises some of the same themes found in an Association of Canadian Publisher's paper that distorts Canadian copyright law (thoroughly debunked by Howard Knopf),
features at least three notable takeaways: the shift to threats of
government lobbying, long overdue admissions that the value of the
Access Copyright licence has declined, and emphasis on arguments that
have been rejected by the courts and government. There are also three
notable omissions: the fact that the overwhelming majority of copying in
schools is conducted with publisher permission, the role of
technological neutrality, and the relevance of other copyright
exceptions. By the end of the document, the CCI and Access Copyright
work to fabricate a new fair dealing test that is inconsistent with
Supreme Court of Canada rulings as they call for dialogue so long as it
leads to a new collective licence.
Read More ...
The Notable Takeaways
TagsShareFriday March 14, 2014
First, the CCI threatens the education community that it will lobby
the government to change the law unless it resumes paying Access
Without an acceptable solution - in other words, the resumption
of licensing for schools, colleges and universities - writers and
publishers will have to pursue political as well as legal
solutions. This is not their preference. There exists a long and
valued relationship (symbiotic, even) among writers, publishers,
educators and students. We believe that there is a better way
The threat of political solutions is particularly laughable given
that the same groups lobbied extensively for two years during the
Bill C-32/C-11 process to urge the government to scale back fair
dealing. Despite numerous appearances before parliamentary
committees, star witnesses, social media campaigns, and public
opinion pieces, the government completely rejected their demands.
With no appetite for more copyright reform in Ottawa, the threat of
a renewed lobby campaign is no threat at all.
Second, Access Copyright and the CCI finally admit that the recent
legal changes have reduced the value of their collective licence.
After the Supreme Court decisions, Access Copyright stated
This decision, however, has no impact on the requirement that royalties continue to be paid on
the hundreds of millions of pages of student texts that are copied for use in K‐12 classrooms
It even argued
after the decision that the Supreme Court had not ruled that the
copies at issue were fair dealing. Now the groups acknowledge:
Copyright owners may not like but they do accept the Alberta
(Education) decision, and that means accepting a lower value for
Access Copyright licensing.
In fact, the decreasing value of an Access Copyright license stems
from more than just changes to Canadian copyright law. The
collective has also admitted that works older than 20 years are
unlikely to be copied under its licences. In its 2012
to authors, the collective noted:
Q. Why are you only asking for works published within the
last 20 years?
A. Our statistical analysis of copying data shows that works
published more than 20 years ago are unlikely to be copied under
This admission from Access Copyright shows how its repertoire is
declining in value since a growing percentage of newer materials are
available by alternative means, while the older materials may not be
subject to an alternate licence, but they are unlikely to be copied.
Over the coming years, the Access Copyright squeeze is only going to
grow as the entire repertoire of materials likely to be copied - the
materials published within the last 20 years - are all published in
the digital/Internet era with many available through alternative
means such as open access or site licences.
Third, the document's emphasis on the Supreme Court's dissenting
opinion or attempts to downplay the law provides a sure sign of a
weak argument. The law of the land is reflected by the majority, not
the minority view. The references to a "very powerful dissent" or
the "bare majority" suggest doubt that simply does not exist. As I pointed
out in this post,
each of Access Copyright's key arguments
(user rights, copier perspective, private study, and aggregate
copying) were rejected by the court. The majority view is unlikely
to be revisited in the short term. In fact, should the issue return
to the court, it is worth noting that the majority judges all remain
on the bench, whereas the dissent has already had one retirement
with another on the way.
The document also tries to downplay the effect of the Court's
decision on numerous occasions. For example, it states:
with the recent addition of "education" as a fair dealing
purpose, we accept that some copying for classroom distribution
now meets the first test for what can be fair dealing - subject to
the very important second test of fairness.
Yet the first test only requires an appropriate purpose. With the
inclusion of education in the law as one of the purposes, all
copying for classroom distribution undoubtedly meets that part of
What the CCI and Access Copyright Do Not Say
The document is also notable for what it does not say. The CCI and
Access Copyright emphasize the 250 million copies that are copied
annually, rather than the 16.9 million copies addressed by the
court. Yet the evidence in the case before the Copyright Board
actually found far more copying. The Access Copyright sponsored
study that lies at the heart of the K-12 case that ended up in
Canada's highest court found that schools already had permission to
reproduce 88% of all books, periodicals, and newspapers without even
conducting a copyright analysis or turning to the Access Copyright
That study, conducted by Circum Network Inc., tracked the
photocopying practices at hundreds of schools across the country
with full logging of all copying over two-week periods. The study
found a huge amount of photocopying - the Canada-wide estimate was
14 billion copies - but the overwhelming majority have nothing to do
with Access Copyright. In fact, once personal copies, unpublished
copies, administrative documents, and self-produced documents were
accounted for, the number of copies dropped to 4.5 billion. Most of
those 4.5 billion copies were taken from books, but there was
permission to reproduce nearly 4 billion of the copies without
In other words, Access Copyright's own evidence is that schools
obtained permission (typically through direct licences or permission
from the publishers from whom they purchased hundreds of millions in
books) to cover 88% of their book, periodical, and newspaper
copying. Access Copyright is simply irrelevant for the overwhelming
majority of copying even before anyone conducts a fair dealing
The document also conveniently omits the Supreme Court's emphasis on
technological neutrality. For example, it states:
The Court looked only at photocopying of “short excerpts”. It
said nothing about digital delivery. And in CCH, the Court
questioned whether it would have come to the same conclusions with
other methods of copying and if longer excerpts were involved.
Yet the court's discussion of alternative digital delivery models do
not help Access Copyright given the new principle of technological
neutrality articulated in the ESAC case:
The principle of technological neutrality requires that, absent
evidence of Parliamentary intent to the contrary, we interpret the
Copyright Act in a way that avoids imposing an additional layer of
protections and fees based solely on the method of delivery of the
work to the end user. To do otherwise would effectively impose a
gratuitous cost for the use of more efficient, Internet-based
The singular focus on fair dealing also omits the many additional
exceptions available to education. The fact that much of the copying
of short excerpts may simply be de minimis and not even require a
fair dealing analysis (much less an Access Copyright licence) is not
discussed, though the Copyright
wants the collective to address the issue. Moreover, the
education Internet exception, the non-commercial user generated
content exception, the distance education exception, and others may
all be used by education to cover some copyright uses. Indeed, these
same groups warned during the C-11 process that those provisions
would have the effect of granting education expansive new rights.
What is the End Game?
Leaving aside empty threats about lobbying, what is the Access
Copyright end game? The document makes it clear that for all the
references to "dialogue," from its perspective the only satisfactory
outcome is an Access Copyright licence. Indeed, the document states:
Canada's copyright owners will support whatever action is needed
to reinstate collective licensing in schools, colleges and
Copyright law changes, the millions spent on site licenses, a
diminishing repertoire, and the growth of open access publishing?
All irrelevant in the eyes of Access Copyright which only wants to
talk about reinstating a collective licence. If that wasn't enough
to reject calls for dialogue, there is also an effort to fabricate a
fair dealing test far different from the one articulated by the
Supreme Court of Canada. In the place of user rights, the document
raises a series of new considerations such as "whether the copying
is spontaneous and non-systematic" (irrelevant from a fair dealing
perspective), "whether the copying is directed by the teacher or is
mandated by a board or ministry of education" (having lost the
argument on whether teacher directed copying is fair dealing (it
is), Access Copyright is now shifting to the claim that board
directed copying is not fair dealing), or "whether the copies are
retained/reused" (another non-fair dealing factor).
The reality is that the Supreme Court and the government were both
clear with respect to the emphasis on user rights, fair dealing, and
new user exceptions. The CCI, Access Copyright and its allies argued
these issues before the court and Parliamentary committees. They
lost. The new fair dealing guidelines adopted by the Canadian
education community are a modest implementation of those rules.
There is no need for threats or disingenuous calls for more
dialogue, but rather acceptance of the law and efforts to adapt to
the new legal environment. The CCI document suggests that is still
not part of the collective's strategy for moving forward.
In August 2011, the federal government announced plans to consolidate
more than 100 different email systems used by over 300,000 employees
into a single, outsourced email system. While the email transition is
currently underway - Bell won the nearly $400 million contract last year
- the decision quietly sparked a trade fight with the United States
that placed the spotlight on the risks associated with hosting computer
data outside the country.
At the heart of the dispute is the emergence of cloud computing services
such as web-based email, online document storage, and photo sharing
sites. These services are based on a computing infrastructure that
relies on huge computer server farms and high-speed network connections
that allow users to access their content from any device connected to
My weekly technology law column (Toronto Star version, homepage version) notes that cloud computing services offer the promise of convenience and cost
savings, but at a price of reduced control over your own content,
reliance on third-party providers, and potential privacy risks should
the data "hosted in the cloud" be disclosed to law enforcement agencies
without appropriate disclosure or oversight.
Read More ...
TagsShareWednesday March 12, 2014
The Canadian government was clearly concerned by dangers associated
with storing potentially sensitive emails outside the country.
Invoking a national security exception, one of its requirements for
the single email system was that it be hosted in Canada on a secured
server. As U.S. companies later noted, this effectively excluded
them from bidding on the contract.
According to documents
recently obtained by the B.C.
Freedom of Information and Privacy Association
, the companies
escalated their concern to U.S. government officials, urging them to
launch a trade complaint over the Canadian requirements. While the
companies explored several alternatives that might address Canadian
concerns, including encrypting all data and retaining the encryption
key in Canada (thereby making it difficult to access the actual data
outside the country), the government insisted on Canadian-based
The reason? According to internal U.S. documents discussing the
issue, Canadian officials pointed to privacy concerns stemming from
the USA Patriot Act.
The privacy concerns raise a bigger question for millions of
Canadians that use U.S. cloud services as well as organizations such
as Canadian universities that are contemplating switching their
email or document management services to U.S.-based alternatives.
Simply put, if U.S. cloud services are not good enough for the
Canadian government, why should they be good enough for individual
In light of the Edward Snowden revelations of widespread
surveillance by the National Security Agency, the answer for many
Internet users will increasingly be that they are indeed
uncomfortable with the loss of control over their data. In recent
months, many countries have begun to explore mandating local cloud
providers to ensure that domestic data stays in the country. In
response, the U.S. has lobbied for inclusion of a provision in the
Trans Pacific Partnership, a trade agreement currently being
negotiated by more than a dozen countries including Canada, that
would restrict the ability for countries to restrict data transfers
and mandate local computer storage.
The Canadian government has said little about its position on the
issue despite the fact that Canadians are already particularly
vulnerable to potential disclosures to law enforcement or
intelligence agencies. According to OECD
, the majority of Canadian dot-ca domain name websites are
hosted outside the country, with Canada ranking among the lowest
countries in the developed world for domestic website hosting.
Moreover, Canadian Internet providers such as Bell exchange their
Internet traffic in the U.S., ensuring that even simple domestic
emails frequently enter the U.S. network before returning to Canada.
Mandating local cloud computing services will not address many of
the privacy concerns associated with widespread surveillance and
inadequate oversight, but when even the Canadian government insists
on domestic computer servers for its information, it may be time for
individual Canadians to think about doing the same.
Canada and South Korea announced agreement on a comprehensive trade agreement
earlier today. The focus is understandably on tariff issues, but the
agreement also contains a full chapter on intellectual property (note
that the governments have only released summaries of the agreement, not
the full text, which is still being drafted). The IP chapter is
significant for what it does not include. Unlike many other trade deals -
particularly those involving the U.S., European Union, and Australia -
the Canada-South Korea deal is content to leave domestic intellectual
property rules largely untouched. The approach is to reaffirm the
importance of intellectual property and ensure that both countries meet
their international obligations, but not to use trade agreements as a
backdoor mechanism to increase IP protections.
Yesterday I noted
that Canada might be asked to increase the term of copyright protection
given that South Korea had agreed to longer copyright terms in its
recent agreements with the European Union, Australia, and the U.S. In fact, the U.S. agreement contains extensive additional side letters on Internet provider liability, enforcement, and online piracy.
The Canada - South Korea deal rejects that approach with copyright,
trademark, patent, and enforcement rules that are all consistent with
current Canadian law (plus the coming border measures provisions in Bill
Read More ...
TagsShareTuesday March 11, 2014
On copyright, the summary states the agreement:
- reflects Canada's regime as updated by the 2012 Copyright
Modernization Act, which brought Canada into compliance with
the World Intellectual Property Organization's two Internet
- reiterates existing aspects of Canada's regime, including
the protection of technological protection measures
(technology designed to protect copyrighted material),
protection of rights management information, and special
measures against copyright infringers on the Internet (no
change to Canada’s notice and notice regime, which defines the
responsibility of Internet service providers in respect of
copyrighted material on their networks).
The specific reference to notice-and-notice is important since it
confirms no takedown requirements nor three-strikes rules. The
specific measures against copyright infringers may be interpreted as
Canada's enabler provision that targets websites that facilitate
infringement. Moreover, the references to reflecting Canada's regime
indicates that there is no copyright term extension or other
The approach is much the same on both trademark and patent. On
trademark, the summary states the agreement:
reflects existing aspects of Canada's trademarks regime,
including those pertaining to trademark registration, application
and cancellation as well as to well-known trademarks.
while on patents, it states the agreement is:
in line with Canada's current regime, including criteria
regarding patentability and exclusions from patentability; no new
commitments in the area of pharmaceutical patents.
The IP approach is notable for several reasons. First, the agreement
confirms that neither Canada nor South Korea view increased IP
protections as a trade priority. This is not particularly
surprising, but it is important within the context of the Trans
Pacific Partnership negotiations. Canada is clearly committed to its
current rules and seems likely to continue to oppose U.S. and
Australian efforts to increase protections in the TPP.
Second, the decision to maintain existing domestic laws without
pressuring the other country to conform to its approach illustrates
that claims of the necessity for harmonized IP rules in trade
agreement are simply untrue. A far more appropriate approach is to
require consistency with international obligations.
Third, the Canada - South Korea agreement may provide a model for
many other countries that wish to include intellectual property
provisions in their trade agreements but are content to require each
party to meet international standards rather than the domestic rules
of one of the parties. The U.S. and E.U. approach has been to export
their rules to other countries, but Canada and South Korea have
demonstrated that respect for domestic choices and compliance
international obligations is a better alternative.
Prime Minister Stephen Harper is currently in South Korea reportedly
to finalize agreement on the Canada - South Korea trade agreement. The
proposed deal has been the subject of a decade of negotiation with
opposition from the auto industry resulting in significant delays. While
the focal point of the agreement will be on tariff issues involving the
automotive and agricultural sectors, the deal will include an
intellectual property chapter. The IP issues have not received any
attention (the entire agreement remains secret so discussion has been
generally limited), but it is possible that it will require Canada to
extend the term of copyright.
An initial Canadian environmental assessment of the agreement suggested
that the IP chapter would simply reaffirm existing IP obligations. If
the agreement is limited to reaffirming existing commitments, copyright
term will not be touched since Canada meets the international
requirement of life of the author plus 50 years. However, South Korea's
recent trade deals with both the European Union and Australia
feature a minimum copyright term of life of the author plus 70 years
(the Australian deal also includes a requirement for "measures to
curtail repeated copyright infringement on the Internet"). Whether the
Canadian deal contains a similar provision will be worth monitoring,
both for the impact on Canadian copyright law and for the international
trade implications such as the Trans Pacific Partnership that is
currently under negotiation.TagsShareMonday March 10, 2014
Industry Canada's Report on Plans and Priorities for 2014-15 includes a notable paragraph on priorities for the digital economy. The report states:
In 2014–15, Industry Canada will deliver the telecommunications
consumer commitments included in the 2013 Speech from the Throne. These
include taking legislative action to amend the Telecommunications Act to
reduce roaming costs and prevent wireless providers from charging other
companies more than they charge their own customers for mobile
services. The Department will also protect consumer interests by
encouraging compliance and adopting more effective remedies, including
administrative monetary penalties, when violations occur. Industry
Canada will continue to promote investment in high-speed broadband
networks for rural Canadians.
These priorities are an important part of a robust digital economy. Other elements will include: modernizing the privacy regime to better protect consumer privacy online;
monitoring the implementation of Canada's anti-spam legislation; and
deepening analysis of Canada's communications infrastructure.
While the telecom actions were expected, the commitment to modernizing
Canadian privacy laws is new (albeit long overdue). Previous privacy
reform bills died on last year, leaving the government years behind in
addressing PIPEDA reform. The Industry Canada report suggests that some
legislative action may finally be on the way.TagsShareFriday March 07, 2014
The federal government released its Report on Plans and Priorities for
2014-15 today with departments and agencies identifying spending
estimates and work priorities. The CRTC's report offers some interesting insights into its main activities and targets, particularly with respect to broadband access.
The latest CRTC broadband target is for 100% of Canadian households to
have access to broadband speeds of 5 Mbps download and 1 Mbps upload by
December 31, 2014. That target is a year ahead of schedule as last year's report
set the 100% target for the end of 2015. The new target is also
difficult to reconcile with the government's announcement that it plans
to spend $305 million over the next five years to extend broadband to
rural and remote areas. In fact, last week reports
suggested that Industry Minister James Moore and the government had
established a target of 2019 for universal access to broadband. If the
CRTC target is achieved, the government's broadband plans and targets
would appear already outdated. Interestingly, Industry Canada's report
includes a target of 77% of the population with broadband subscriptions
(not access) by March 2015, but broadband is defined is only 1.5 Mbps
Read More ...
TagsShareThursday March 06, 2014
The CRTC has also become more aggressive about its targets for
broadband competition. Last year, it set a target of 50% of
households having access to three or more broadband providers with a
5% annual increase thereafter. This year, it has set a target of 95%
of households by March 2015 (oddly, it has scaled back its target
for competitive access to broadcast distribution undertakings having
targeted four or more last year, but only three or more this year).
In addition to broadband targets, the report features targets for
everything from spam reduction to viewership of Canadian content.
With the new anti-spam law set to take effect in July, the CRTC
hopes to reduce spam by 10% over the next 12 months. The Canadian
content targets have changed completely with the CRTC now focused on
the viewership or listeners to Canadian content. By March 2015, the
Commission target is 48% of total television viewing is to Canadian
programming, while it wants 50% of radio listening to Canadian
content. The CRTC targets differ slightly from those of Canadian
, which set a target of 50% Canadian programming
viewing by August 2015.
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