The opinion continues:

A targeted form of monitoring by right holders would be legitimate if the processing is carried out in the context of specific, current or forthcoming judicial proceedings, to establish, make or defend legal claims. However, the generalised monitoring followed by the storage of data on a general scale for the purpose of enforcing claims, such as the scanning of the Internet as such, or all the activity in P2P networks, would go beyond what is legitimate. Such general monitoring is especially intrusive to individuals' rights and freedoms when it is not well defined and there is no limitation to it, in scope, in time, and in terms of persons concerned. As a consequence, the indiscriminate or widespread monitoring of Internet user' behaviour in relation to trivial, small-scale not for profit infringement would be disproportionate and in violation of Article 8 ECHR, Articles 7 and 8 of the Charter of Fundamental Rights, and the Data protection Directive.

The opinion engages in detailed analysis of specific provisions, noting the lack of clarity on the scope of enforcement, the problems of vagueness with respect to "competent authorities" entrusted with injunction power, that voluntary cooperation agreements may require conduct in violation of EU law, and the absence of sufficient limitations and safeguards on monitoring practices. The EDPS statement is a must-read for European politicians currently considering ACTA and should be assessed by privacy authorities - including Canadian Privacy Commissioner Jennifer Stoddart - to assess the impact of ACTA within their national laws.

The deal marks a significant increase from the previous agreement, which had cost students less than four dollars annually plus ten cents per page for materials included within printed coursepacks. The new fees are likely to be passed along to students, who will ultimately bear the burden of the copyright arrangement with higher tuitions.

Those students may be puzzled by the AUCC decision to settle on an expensive new licensing model. Over the past year, many universities, including York, Queen's, UBC, and Waterloo have operated without Access Copyright altogether.

Those schools have identified licensing alternatives such as campus wide electronic database licenses that offer access to thousands of journals and electronic books that can be incorporated directly into electronic coursepacks. Universities already pay millions of dollars for these licenses with the money flowing to database companies, publishers, and authors.

Moreover, open access licensing, where research publications are freely available online, constitutes a growing percentage of published research, with thousands of open access journals and hundreds of thousands of articles posted directly by the researchers themselves. Add public domain works, fair dealing, hundreds of millions spent on textbooks, and pay-per-use licenses for the remaining works and the decision to forego an Access Copyright licence becomes easy to understand.

Even more curious is the timing of the AUCC agreement. Bill C-11, the government's copyright bill, features several provisions designed to assist education. These include an expansion of fair dealing for education and a new exception for publicly available materials on the Internet. The bill is expected to become law by the summer.

If that wasn't enough, the model licence purports to grants rights for copying that does not require permission. For example, it defines copying as including "posting a link or hyperlink to a digital copy", yet linking to content can hardly be described as copying materials. Moreover, the licence comes packed with onerous restrictions such as blocking the ability to store articles in online services such as Mendeley or Dropbox.

And the millions of dollars collected by Access Copyright?  Last year, the collective spent 30 percent of its licensing revenues on administrative expenses, including over two million dollars for Copyright Board applications and professional fees involving lobbying against copyright reform that might benefit educational institutions.

Given these circumstances, the AUCC decision to sign the model licence represents a stunning abdication of leadership that will cost students millions of dollars and slow innovation in Canada's higher education community. So why sign an agreement when there are other options?  Expensive additional insurance policies are easy to sign when someone else is paying the bill.

Today, with a limited number of companies and all with Canadian ownership, authorities and service providers often work together to develop and implement network solutions to support investigative requirements. With market diversification and an increased number of service providers, the need for legislation requiring intercept-capable networks becomes paramount in ensuring the investigative and intelligence gathering capabilities of law enforcement agencies and national security agencies are appropriately maintained.

Through Bill C-52 [predecessor to C-30], the Investigating and Preventing Criminal Electronic Communications Act, the Government is pursuing legislation that will help keep Canadians safe by equipping the police and national security agencies with the tools they need to combat crime and terrorism in the digital age. This legislation would help mitigate against possible threats from hostile foreign entities that would seek to exploit possible future relaxation of the foreign ownership restrictions in the telecommunications market.

Leaving aside the fact that child pornography doesn't even rate a mention and the characterization of foreign entrants as hostile, the submission points to a likely line of argument from Public Safety (given the government's decision to partially relax the foreign investment rules) should Bill C-30 be revived.

From a technical perspective, the court states:

Whilst the relationship between iiNet and its customers involves the provision of technology, iiNet had no direct technical power at its disposal to prevent a customer from using the BitTorrent system to download the appellants' films on that customer's computer with the result that the appellants' films were made available online in breach of s 86(c)

From a contractual perspective:

Even it if were possible to be satisfied that iiNet's inactivity after receipt of the AFACT notices, and its subsequent media releases, "supported" or "encouraged" its customers to continue to make certain films available online, s 101(1A) (construed with both s 22(6) and s 112E) makes it plain that that would not be enough to make iiNet a secondary infringer.

While the court concludes that ISPs cannot be said to authorize infringement under current law, legislative or industry practices could be used to address the issue. It notes that some approaches may still involve the courts (ie. termination of accounts) and issues of cost sharing. Canada is slated to adopt its own notice-and-notice approach to address these issues as part of Bill C-11.

In 2010, it appeared the government was set to cancel the program, bolstered by a 2009 evaluation conducted by the Audit and Evaluation Branch of Industry Canada. The evaluation found that the program was "less aligned with the current priorities" of the government and that "it may have out-lived its usefulness as a means to bring the Internet to communities across Canada."

When letters were sent to local programs notifying them of the impending cuts, the local communities expressed their concern to elected officials. The outrage led then-Industry Minister Tony Clement to quickly reverse the decision, chalking up the notification letters to a funding misunderstanding.

Changes in Internet access rates may have made the CAP an obvious target for elimination, but fostering universal access to the Internet is more important than ever. As governments embrace open government initiatives and shift toward electronic delivery of services, ensuring that all Canadians have Internet access becomes an absolute necessity.

Yet the 2010 Statistics Canada Internet Use survey found that many low-income Canadians do not have Internet access at home. While 97% of Canadians in the top income quartile have access, that number drops to 54% for those in the bottom quartile. In other words, nearly half of all Canadians with incomes of $30,000 or less do not have ready access to the Internet.

For those Canadians, the issue is not whether Internet access is available but rather whether it is affordable, particularly when combined with the need to invest in computing equipment. The CAP helped address the affordability gap by ensuring that thousands of Canadians - even those without a computer or who found that monthly access charges were beyond their means - would have access to the Internet.

The CAP may have needed retooling, but there remains a Canadian digital divide that should be addressed. By comparison, the U.S. Federal Communications Commission teamed up with cable and technology companies last year to launch Connect-to-Compete, which promises to bring computers and Internet access to low-income households.  

The program, which will officially launch in September, includes a commitment from the cable companies to offer $10 a month broadband Internet access to homes with children that are eligible for free school lunches. Moreover, families can purchase a refurbished computer for $150 or a new one from Microsoft for $250. For those without computer expertise, Best Buy's Geek Squad will offer basic digital literacy training in 20 cities around the country.

For thousands of Canadians that relied on the CAP, its elimination raises the real prospect of being cut off from the Internet. The failure to identify alternatives that support affordable access to Internet services and computers, along with the necessary skills development, places the spotlight once again on Canada's missing digital strategy.

Leaving aside the specific dollar amount, this is certainly a good deal for Access Copyright. It doesn't garner the $45 per student it was seeking, but even Maureen Cavan, the Access Copyright Executive Director, acknowledged that was an upper limit. With declining revenues (revenues dropped by 11.6% last year), getting the universities back into the fold before they fully developed systems without the need for Access Copyright was understandably a priority. Reaching this deal despite a relatively weak bargaining position is a win for the collective.

In the short term, this looks like a terrible deal for AUCC. Many of its members have opted out of Access Copyright altogether and while there were some expected early challenges, the concerns associated with clearing specific content or finding alternatives appears to have subsided. For those universities not ready to opt-out (including my own), an interim tariff was available at a fraction of the cost of the new deal. Moreover, with fair dealing about to be expanded to include education (which Access Copyright board members have suggested would allow for widespread uncompensated copying), a new exception for publicly available materials on the Internet, and the Supreme Court of Canada decision in the Crookes case that removed concerns about liability for linking, the law is increasingly on AUCC's side.

Given the legal reforms and the increasing comfort with operating outside of Access Copyright, why did AUCC settle?  I have no inside information, but my guess would focus on three factors. First, AUCC has never appeared comfortable with the copyright file. For years, its members paid millions to Access Copyright without giving it much thought. It was only after the collective sought a massive increase that it captured the attention of senior officials at Canadian universities, who began to question the value of the licence. AUCC, led on this issue by a former publisher association executive, has always seen copyright as a cost, not a cause. Once Toronto and Western struck deals with Access Copyright, the broad framework was established and an AUCC deal for a model for its remaining members was likely only a matter of time.

Second, a prolonged fight at the Copyright Board (and perhaps later at the Federal Court) is very expensive. Unlike the $26 per student tariff that will be borne by students in their tuition fees, the regulatory and litigation costs are more difficult to pass along directly to students. By striking a deal now, AUCC saves millions in fees, though students will ultimately bear the costs of its settlement.

Third, the short term advantage may have rested with AUCC, but there were some serious longer term risks. While many experts question the Access Copyright repertoire and the value of its licence, the Copyright Board has increasingly fashioned itself as a guardian of the collective. The Board's decision to issue an interim tariff without any reasoning hours before most people were heading into a holiday week was an embarrassment (the claims of urgency were proven wrong) and left little doubt that the Board was prepared to do almost anything to assist Access Copyright. The subsequent decisions, which included warnings about the difficulty of opting-out of Access Copyright, further entrenched the view that a hearing before the Board would not end well for AUCC, no matter the law nor the limited value of the Access Copyright repertoire.

What is lost with this settlement is the chance for something better. The shift away from Access Copyright in recent months has led to a growing awareness of the large number of licensed materials on university campuses, the benefits of open access, the emergence of open educational resources, and the move to digital course materials. Investing in new open materials - which pay the creator but allow for more flexible use and reuse - would offer innovative teaching materials at the very time that Canadian higher education should be rethinking how course materials are developed and disseminated in a digital world. This is hard work as new models require real investment, commitment from faculty, and patience from students. The payoff would have been significant, but the AUCC is seemingly more interested in "cost certainty" than in education innovation.  The big question now is whether its members feel the same.  My guess is that most will sign, but perhaps some will carefully assess their experience of operating outside the collective and see some short term pain for long term gain.

For those that sign the model licence, the new AUCC - Access Copyright deal is simply more of the same: AUCC and its institutions pass along copyright costs to students, Access Copyright gets millions in revenues despite ongoing questions about its repertoire (with thousands used to lobby against education copyright reforms and most of the money going to foreign collectives and publishers, not authors), and the potential for digitally-oriented changes within Canadian higher education heading back to the back burner.

The emphasis on the need for a reporting requirement - even after the fact - is based on the view that it is perhaps the best form of accountability. The court cites with approval language from the Ontario Criminal Lawyers' Association that "the right to privacy implies not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy. Notice would enhance all these interests. In the case of a secret warrantless wiretap, notice to intercepted person stands almost alone as an external safeguard."

Given the court's emphasis on notice, it is striking that Bill C-30 moves in precisely the opposite direction. As David Fraser has discussed, the lawful access bill has a gag order the explicitly prohibits disclosure of the warrantless disclosure. The provision is designed to stop telecom and Internet companies from disclosing their mandated disclosures to affected subscribers, even if they ask. In fact, the lack of accountability extends beyond just the statutory gag order on notice. Law enforcement officials - including Competition Bureau investigators - can demand subscriber data without a warrant and without any justification for the demand. Given the missing accountability measures in Bill C-30, last week's Supreme Court decision sends a strong message that the lawful access bill is constitutionality vulnerable and provides yet another reason to withdraw the bill and hit the reset button.

While GeoCoder makes for a fascinating case study on generating crowdsourced information, the legal issues raised by the case should attract widespread attention. Key issues include whether there is any copyright in postal codes (GeoCoder argues that postal codes are facts that are not subject to copyright, noting to conclude otherwise would result in "copyright infringement on a massive, near-universal scale"), questions on whether Canada Post owns copyright in the database if there is copyright (Canada Post relies on a section in the Canada Post Corporation Act that does not appear to exist), and a denial that the crowdsourced version of the database - independently created by GeoCoder - infringes the copyright of the Canada Post database. 

Moreover, the defence also raises copyright claims such as the public interest ("to allow copyright to restrict the ability of Canadians to distribute, collect and aggregate their postal codes – which is all Geolytica has done – would have severely detrimental consequences for the public interest"), copyright misuse ("Canada Post Corporation's over-broad copyright claims demonstrates its practice of anti-competitively asserting monopoly over Canada's postal code system"), and the prospect that the Canada Post claim is statute-barred.

The case could certainly generate some notable intervenors. For marketers that have independently developed and marketed their own databases that include postal code information, they could face similar copyright claims by Canada Post and may need to support GeoCoder. Given the government's emphasis on open data, the federal government may have something to say about Canada Post's efforts to restrict public compilation and distribution of postal code information. Moreover, with many groups relying on GeoCoder's information for affordable access to postal code data to engage in political advocacy, Canadian courts may hear why ensuring continued access to GeoCoder's compiled data is in the public interest.