The European Data Protection Supervisor has issued a new
opinion
on the Anti-Counterfeiting Trade Agreement, expressing serious concerns
about the impact of the agreement on privacy and data protection (a prior opinion
was released in 2010). The
EDPS states:
Many of the measures that could be
implemented in the context of Articles 27(3) and 27(4) of ACTA would
involve a form of monitoring of individuals' use of the Internet,
whether by detecting actual IP rights infringements or by trying to
prevent any future infringements. In many cases, the monitoring would
be carried out by right holders or right holders' associations and
third parties acting on their behalf, although they often seek to
delegate such task to ISPs.
Read More ...
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.
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Car rental companies are infamous for encouraging customers to sign up
for expensive liability insurance policies. Since many renters already
have coverage from their own automotive insurance policies or can rely
upon insurance coverage provided by their credit card issuer, the
decision whether to sign up for a costly additional policy frequently
depends upon who is paying the bill. If the individual is on the hook,
they will often decline coverage and rely on their existing policies.
If someone else is paying, it becomes easier to justify signing up for
the additional coverage.
Last week, the Association of Universities and Colleges Canada, which
represents dozens of Canada's leading universities, signed up for one
of the most expensive copyright insurance policies in Canadian history.
My weekly technology law column (Toronto
Star version, homepage
version) notes the policy comes in the form of a controversial model
copyright
licensing agreement with Access Copyright, a copyright collective
that
licenses copying and distribution of copyrighted works such as books,
journals, and other texts. Should AUCC members sign the agreement - it
falls to each individual university to decide whether to do so - they
will pay $26 per full time student per year for the right to copy works
from the Access Copyright repertoire.
Read More ...
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.
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Last week, I posted on
the Public Safety Canada seeming attempt to circumvent
the government's spectrum consultation by submitting dual letters - a
public letter expressing mild concern with foreign ownership and a
secret letter warning of "considerable risks". While that approach
raises serious concerns that undermine public confidence in the
consultation process, Public
Safety's detailed response (which is available on the Industry
Canada site) anticipates the fight over Bill C-30 by specifically
claiming that opening the Canadian telecom sector to foreign
competition increases the necessity
of lawful access legislation:
Read More ...
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.
c-30, foreign ownership, lawful access, public safety, telecom Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday April 23, 2012 |
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Earlier this week, Bloomberg reported
that Public Safety Canada expressed concern about the public safety and
national security risks associated with lessening or removing foreign
ownership restrictions in the telecom sector in a confidential letter
to Industry Canada obtained under the Access to Information Act. While
the claims are suspect - the overwhelming majority of OECD countries
removed telecom foreign ownership restrictions years ago - it is worth
noting that Public Safety, which was led at the time by Vic Toews,
appears to have tried to circumvent a public consultation by sending
two letters to Industry Canada on the same day. One letter was made
available to the public as part of an open consultation process,
while the other was labelled secret and only now released under ATI.
The letter obtained by Bloomberg, dated February 25, 2011, was signed
by Assistant Deputy Minister Daniel Lavoie and addressed to Assistant
Deputy Minister Helen McDonald. The secret letter contains quotes that
include "the security and
intelligence community is of the view that lessening or removing
restrictions from the Telecommunications Act, without implementing
mitigation measures, would pose a considerable risk to public safety
and national security." The secret letter also apparently adds that
foreign ownership may hinder the ability to follow intelligence
priorities set by the Cabinet.
It notable that Public Safety filed a separate
public letter
with Industry Canada on the same day. That letter, also signed by
Daniel Lavoie and dated February 25, 2011, has been on the Industry
Canada website for months as it was submitted as part of the
consultation on the 700 MHz spectrum auction. The letter touches on the
same issues, but does not contain the same language. The unequivocal
warnings in the secret letter are gone, replaced by softer language
that "increased investment could inadvertently pose national security
risks."
The Public Safety approach is deeply troubling as the dual letter
approach may have been an effort to circumvent the public consultation
process by stating one
thing in a public consultation (which would be open for public comment)
and another in a secret letter sent to Industry Canada on the same day.
Industry Canada officials would know the real views of the department,
while the public would be kept in the dark.
telecom. public safety Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday April 20, 2012 |
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The Australian High Court has issued a landmark
ruling
that firmly sides with Internet providers over their liability and
responsibility for alleged infringement on their networks. The closely
watched case involves a lawsuit by the movie industry which claimed
that iiNet, an Australian ISP, was liable for authorizing infringement
by its subscribers. The unanimous court rejected the movie industry
claims, finding that the ISP had no technical or contractual power to
act.
Read More ...
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.
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The recent federal budget was a hefty 498 pages, but my weekly
technology law column (Ottawa
Citizen version, homepage
version) notes it still omitted
disclosing the decision to eliminate funding for the Community
Access
Program, Canada's longstanding initiative to provide an Internet
access
alternative for those without connectivity. The world has changed
dramatically since the CAP was first launched in 1995, but the decision
to cut it without establishing alternative solutions for low-income
Canadians who are not online is a disappointing development that
highlights yet again the absence of a national digital strategy from
Industry Minister Christian Paradis.
The CAP was once a foundational element in the federal government's
effort to connect Canadians. In the late 1990s, many did not have
Internet access at home and wireless data plans were still years away.
Today, the majority of Canadians have residential broadband access as
well as wireless connectivity through their smartphones or other
devices.
The decision to cut the CAP therefore does not come as a surprise.
Read More ...
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.
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Access Copyright and the Association of Universities and Colleges of
Canada announced
an agreement yesterday on a model licence. The deal calls for a royalty
payment of $26 per full time student, below the $45 Access Copyright
was seeking at the Copyright Board (and below the $27.50 in the
Toronto/Western deal), but well above the current rates. While the
agreement is just a model that leaves it to the individual universities
to decide whether to sign, it is hard to imagine that AUCC did not
obtain some support from its member institutions for it before reaching
agreement.
It is difficult to provide detailed comments on the agreement since the
text
is not yet available and the $26 figure is not based on anything more
than a negotiated
figure reflecting what two parties anxious to settle were willing to
pay or accept. The reality is that it is primarily a product
of a broken Copyright Board model that incentivizes lofty demands that
set the bar higher for either a negotiated settlement or a Board rate
setting exercise. It is not based on the actual value of
the repertoire nor on the copying on campuses that fall outside of fair
dealing, public domain, or the myriad of alternate licenses that
already grants compensated access to thousand of journals and books.
Read More ...
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.
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Last year, when Bell's purchase of CTV was undergoing regulatory
approval, the company went out of its way to emphasize its support for
the struggling local channels it was acquiring as part of the deal. At
a CRTC hearing on the issue in February 2011, company officials stated:
the 'A' channels, which have
struggled tremendously over the last several years, require assistance
to continue to maintain their current programming levels. They also
require investment to be broadcast in high definition, which will
improve 'A' channel programming quality and allow for HD simulcasting.
Together these investments will help ensure that 'A' channel local
programming can be sustained and can remain available to these
communities.
The same hearing included an appearance from Randy Goulden, the
Executive Director of the Yorkton Film Festival in Yorkton,
Saskatchewan. Goulden extolled the virtues of a Bell - CTV merger for
local CTV channels:
CTV's local television stations are a
great part of the Canadian broadcasting system. They provide invaluable
promotion and publicity of our initiatives and our programs, raising
our profile to a level we would not have the opportunity to enjoy
without their support. The Yorkton Film Festival supports CTV's
acquisition by Bell as it will make CTV a stronger company and that, I
believe, will enable organizations like mine to continue to grow.
Just over a year later, Bell now
says
the Yorkton station is potentially on the chopping block. As the CRTC
conducts
hearings on the Local Programming Improvement Fund and the Supreme
Court of Canada holds its hearing on the fee-for-carriage, Bell says
that "we won’t continue to fund chronically unprofitable
stations, tiny stations in tiny little towns." Yorkton is on that list,
along with at least five other stations (which Bell says could grow
to 10 stations if the LPIF shrinks). Bell promised to keep the A
channel stations operational for three years during the regulatory
process, but no similar promises were made for local CTV channels. In
other words, the owner may have changed, but the game remains the same
- use threats to close local channels as the basis for demanding
additional revenues through regulation.
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The Supreme Court of Canada issued an important decision last week on
the wiretap provisions in the Criminal Code that should have an impact
on the lawful access/online surveillance bill currently before
Parliament. In R. v. Tse,
a unanimous court ruled that the current emergency wiretap provision
that allows for surveillance without a court order is
unconstitutional. The court's analysis is important because it speaks
to one of the major criticisms of Bill C-30 - the lack of
accountability. In this particular case, the court rules that
warrantless wiretap may be permissible in emergency situations, but
that such circumstances make an accountability particularly important:
The jurisprudence is clear that an
important objective of the prior authorization requirement is to
prevent unreasonable searches. In those exceptional cases in which
prior authorization is not essential to a reasonable search, additional
safeguards may be necessary, in order to help ensure that the
extraordinary power is not being abused. Challenges to the
authorizations at trial provide some safeguards, but are not adequate
as they will only address instances in which charges are laid and
pursued to trial. Thus, the notice requirement, which is practical in
these circumstances, provides some additional transparency and serves
as a further check that the extraordinary power is not being abused. In
our view, Parliament has failed to provide adequate safeguards to
address the issue of accountability in relation to s. 184.4. Unless a
criminal prosecution results, the targets of the wiretapping may never
learn of the interceptions and will be unable to challenge police use
of this power.
Read More ...
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.
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Canada Post has filed a
copyright infringement lawsuit against Geolytica, which operates GeoCoder.ca,
a website that provides several geocoding services including free
access to a crowdsourced compiled database of Canadian postal codes.
Canada Post argues that it is the exclusive copyright holder of all
Canadian postal codes and claims that GeoCoder appropriated the
database and made unauthorized reproductions.
GeoCoder, which is being represented by CIPPIC, filed its statement
of defence
yesterday (I am on the CIPPIC Advisory Board but have not been involved
in the case other than providing a referral to CIPPIC when contacted by
GeoCoder's founder). The defence explains how GeoCoder managed to
compile a postal code database by using crowdsource techniques without
any reliance on Canada Post's database. The site created street address
look-up service in 2004 with users often including a postal code within
their query. The site retained the postal code information and
gradually developed its own database with the postal codes (a system
not unlike many marketers that similarly develop databases by compiling
this information). The company notes that it has provided access to the
information for free for the last eight years and that it is used by
many NGOs for advocacy purposes.
Read More ...
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.
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