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Statistics Canada this morning released its annual report
on Canada's culture goods trade balance. This data covers cultural goods such as books, CDs, films, and art (royalty payments are included in the numbers).
TagsShareThursday May 19, 2005
The latest figures are sobering. Canada's culture goods trade deficit has ballooned to $2.2 billion, 63% of which is with the United States. That represents the largest culture goods deficit number since 1997 and is the fourth straight year the deficit has grown.
These numbers ought to re-emphasize the obvious -- as a net importer of culture, our cultural policies, particularly our copyright policies, need not mirror those found in a major exporting country such as the United States. Our policy makers should be focusing on new ways to encourage the development of Canadian culture at home and its promotion abroad. The Internet and new technologies provide an exceptional opportunity to do just that, yet we seem to focus primarily how best to import both U.S. culture and U.S. copyright law. Not only is that bad public policy, but it is a guaranteed way to ensure that next year's Statscan numbers show more of the same.
Canada's national spam task force today delivered its report to Industry Minister David Emerson. I was a member of the task force and served as the co-chair of the law and regulatory working group.Read More ...
TagsShareTuesday May 17, 2005
I'll have more to say about the task force report soon, but I
do want to provide a comment on the law and enforcement
recommendations, which will likely generate the most amount of
interest. The task force helped facilitate a series of cases (including
my own privacy complaint
against the Ottawa Renegades over unsolicited commercial email they
sent me) to test the current Canadian legal framework. Quite simply,
the task force concluded that the current laws are not good enough.
While Canada alone is not able to deal with the spam problem, we must
at least deal with the spammers in our own backyard. The current legal
framework contains some significant holes and the recommendations call
for a spam-specific law accompanied by a new separate body to work on
policy and enforcement coordination.
The most important statutory recommendation is a call for a new rule
in a spam-specific law that would make it an offence to fail to abide
by an opt-in regime for sending unsolicited commercial email. This
would set a critical baseline for Canada -- opt-in (as compared to the
U.S. opt-out approach) with penalties. It also sends a clear message
that PIPEDA, the national privacy legislation, is simply ill-equipped
to deal with the most serious spam issues.
The task force also concluded that new legal provisions are needed
to address issues such as false or misleading headers, dictionary
attacks, and the harvesting of email addresses. It also called for the
establishment of a private right of action to help facilitate suits
against Canadian spammers. Taken together, the spam-specific statute
would be far more robust than the current legal framework and would
send an important message to law enforcement that this is a serious
issues that demands action.
While there are 22 recommendations in the task force report, in my
view the success of this initiative will depend upon the government's
ability to act on the eight recommendations focused on a strong new
stand alone spam specific law and an effective coordinating mechanism
to make the new system work. That won't be easy given the current
governmental uncertainty, but there were encouraging words today from
Minister Emerson. More on the report in the days ahead...
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My regular Law Bytes column (freely available linked version
, Toronto Star version
, homepage version
focuses on the CRTC's VoIP decision. I begin by noting that when the
Internet burst onto the public stage in the mid 1990s, legal scholars
initially relied on analogies to identify an appropriate legal
framework. Likening the Internet to the "Law of the Sea" or the "Law of
Outer Space, their hope was that an existing body of law would provide
a ready made solution to the Internet's inevitable legal challenges.
The approach failed, however, as the complexity of the Internet, as
well as the genuinely novel issues it raised, rendered each successive
TagsShareMonday May 16, 2005
I argue that last week marked the return of the Internet
analogy, as in its search for an appropriate regulatory framework, the
CRTC was guided by a single analogy, its belief that the provision of
local VoIP service is most like traditional local phone service and
that similar rules should therefore apply. Unfortunately, much like the
earlier Internet analogies, this one is not a perfect fit.
Focusing primarily on the incumbent telcos (as this analogy does) is
a mistake. Unlike traditional local phone service, VoIP dominance is
not dependent upon local phone service control. Rather, the real danger
lies with insufficient competition in the provision of high speed
Internet access, which serves as the prerequisite to effective VoIP
I fear that by regulating only one of the two choices, the CRTC has
opened the door to cable dominance of the VoIP market while neglecting
two preferable policy choices. First, the Commission could have
established price regulation for both phone and cable, thereby creating
a level playing field as between the two dominant modes of VoIP
delivery and as against third party providers. Alternatively, it could
have dispensed with price regulation altogether, secure in the
knowledge that with open access will come widespread competition.
Even more importantly, the CRTC declined to establish a prohibition
on highspeed Internet access providers that engage in packet
preferencing by either blocking or impairing competing VoIP service as
requested by third party VoIP providers. The CRTC concluded that there
was no evidence that packet preferencing represents a real risk, but
today the opposite is certainly true.
The CRTC issued its much anticipated VoIP decision earlier today. Much to the chagrin
of the major telcos, the Commission has adopted a strong regulatory
approach. While it exempts P2P VoIP providers such as Skype, the
traditional providers face a VoIP framework that looks a lot like the
current local regulatory framework.
The Commission reasons that for consumers, local VoIP service looks
a lot like (and is marketed like) traditional local phone service.
Accordingly, the Commission has set a regulatory framework that
addresses everything from reseller registration to phone directory
listings to privacy protection.
Up to this point, I'd argue that Commission is on solid ground.
Robust competition requires a level playing field and ensuring that all
providers can offer equivalent services that consumers rely upon may
require regulatory intervention of this kind.Read More ...
TagsShareThursday May 12, 2005
The decision goes
awry once the Commission moves on to price regulation. It plans to
treat VoIP in the same manner as local service and thus institute
tariffs and the traditional price regulation found in local service.
This is a mistake. Not (as the major telcos argue) because it will
result in higher consumer prices, which are headed downward no matter
what the Commission does. Rather, VoIP holds the promise of offering
the strongest telecommunications competition we've even seen. If this
marketplace doesn't create reduced prices, the CRTC sure isn't going to
manage to do so.
More troubling is the CRTC decision to stay away from the issue of
service impairment - the fear that the telcos and cable co's will lock
out third party providers either technologically or through poorer
quality of service. The Commission says there is no evidence of this
happening, but we've already seen instances of it occur in the U.S.
This was the one spot where it was essential for the Commission to act,
yet it puzzlingly decided to stay on the sidelines.
More on this to come -- I'm on CBC's As It Happens tonight to discuss and I'll devote my column next week to the issue as well.
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My weekly Law Bytes column (freely available hyperlinked version
, Toronto Star version
, homepage version
) focuses on the recent USTR Special 301 report
and its specific criticisms of Canada's copyright plans. The column highlights the gradual escalation of U.S. linkage of trade and intellectual property protection and calls for the creation of new IP Bullied List that would include at least a dozen countries bullied into agreeing to stronger IP laws, along with a Bullied Watch List that would include dozens of countries currently negotiating similar trade agreements.
TagsShareMonday May 09, 2005
The IP Bullied List would include at least the following 12 countries: Australia, Bahrain, Chile, Singapore, Morocco, Jordan, and the signatories to the Central America Free Trade Agreement (Dominican Republic, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua). Each of these countries has reached trade agreements with the U.S. that include sizable intellectual property requirements.
The Watch List would be even longer, including individual countries such as Panama, Thailand, Malaysia, and Brunei that are all working on bi-lateral trade agreements. Moreover, a block of Middle Eastern countries (Algeria, Kuwait, Qatar, Saudi Arabia, United Arab Emirates, and Yemen) would make the list as part of the Middle East Free Area Initiative as would the five countries working on the Southern African Customs Union Free Trade Agreement (South Africa, Botswana, Lesotho, Namibia, and Swaziland). Further, every country in the Americas, including Canada, Mexico, Argentina, Brazil, Jamaica, Peru, and Venezuela would be on the list by virtue of their participation in the Free Trade Area of the Americas Agreement negotiation.
The Privacy Commissioner of Canada yesterday released the summary of her finding in my spam case launched against the Ottawa Renegades. My case is now Finding #297 and, true to form, the Renegades are now just an unnamed sports organization.
While I am pleased with the outcome of the case and I know that the Commissioner's office worked hard to review the case as quickly as possible given their limited resources, I have to say that the time lag between the first reports of the case last December and the official release of the summary just over five months later is unacceptable. There was no particular harm in this instance since I posted the full finding online for all to see. However, there are surely many other cases where findings are communicated to the parties, perhaps quietly distributed among those "in the know" and the public only reads about them months later. That information assymetry is unfair and should be addressed immediately (and certainly in less time than it took to summarize my case).TagsShareFriday May 06, 2005
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My regular Law Bytes column (free hyperlinked version
; Toronto Star version
, homepage version
reflects on a recent trip to China and the frustrations I encountered
dealing with censorship of the Internet. Despite similar appearances
with broadband access in my Beijing hotel, I found sites blocked, email
downloads short-circuited, and Google searches cut off.
TagsShareMonday May 02, 2005
column notes that the experience was a powerful reminder that
unfettered Internet access is far more fragile than is commonly
perceived. I try to connect the Chinese firewall experience to recent
events in Canada (including the Gomery inquiry experience with
web-based disclosures of information subject to publication bans and
law enforcement authorities for greater surveillance powers under the
lawful access initiative) and conclude that it would be mistake to
think that the Canadian Internet will always remain as free as China's
is censored. The challenge in the months and years ahead will be to
promote a vision of online freedom through lobbying for greater access
abroad and rejecting unnecessary and potentially dangerous limits at
Update: The Ottawa Citizen version
of the column is now online. The article was picked up by Slashdot
leading to an interesting discussion on Internet censorship and China.
I've been quoted in several news articles this week that highlight interesting e-commerce legal issues
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The Wall Street Journal
assessed typo pricing on e-commerce sites and the extent to which sites are bound by the errors. I noted that many sites now include provisions that seek to protect them against obvious pricing errors.
TagsShareSaturday April 30, 2005
The Toronto Star today covers lawyers' growing use of the web and blogs to influence the court of public opinion. This is increasingly common in the U.S. where the Michael Jackson type cases are as much entertainment as legal news. That is less the case in Canada (Air India type cases are news not entertainment) but I still think it is likely that the Canadian legal community will make increasing use of the Web.
Finally, the Montreal Gazette provided a Canadian perspective on the recent case involving Wal-Mart and a U.S. student who was served with a legal demand letter to take down his critical website. While the proposed Canadian copyright reform plan would provide better protection, the Special 301 report makes it very clear that there will be significant pressure in the coming months to shift toward the U.S. approach.
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The U.S. Trade Representative has issued its annual report
on global intellectual property protection, known as the Special 301 Report. Once again, Canada finds itself in good company on the list (a more interesting list would consist of countries who meet the U.S. standard for IP protection).
TagsShareFriday April 29, 2005
This year s report is most notable for its comment on Canadas copyright reform plan, announced just last month. The USTR has the following to say about Canada:
"Canada is being maintained on the Special 301 Watch List in 2005, and the United States will conduct an out of cycle review to monitor Canadas progress on IPR issues during the upcoming year. We urge Canada to ratify and implement the WIPO Internet Treaties as soon as possible, and to reform its copyright law so that it provides adequate and effective protection of copyrighted works in the digital environment. The Canadian court decision finding that making files available for copying on a peer to peer file sharing service cannot give rise to liability for infringement under existing Canadian copyright law underscores the need for Canada to join nearly all other developed countries in implementing the WIPO Internet Treaties. The U.S. copyright industry is concerned about proposed copyright legislation regarding technological protection measures and internet service provider (ISP) liability, which if passed, would appear to be a departure from the requirements of the WIPO Internet Treaties as well as the international standards adopted by most OECD countries in the world. The United States urges Canada to adopt legislation that is consistent with the WIPO Internet Treaties and is in line with the international standards of most developed countries. Specifically, we encourage Canada to join the strong international consensus by adopting copyright legislation that provides comprehensive protection to copyrighted works in the digital environment, by outlawing trafficking in devices to circumvent technological protection measures, and by establishing a "notice and takedown" system to encourage cooperation by ISPs in combating online infringements. It also is imperative that Canada improve its enforcement system so that it can stop the extensive trade in counterfeit and pirated products, as well as curb the amount of transshipped and transiting goods in Canada. The United States also urges Canada to enact legislation that would provide a stronger border enforcement system by giving its customs officers greater authority to seize products suspected of being pirated or counterfeit. We also encourage greater cooperation between Customs and the Royal Canadian Mounted Police in enforcement matters, and encourage Canada to provide additional resources and training to its customs officers and domestic law enforcement personnel. Canada s border measures continue to be a serious concern for IP owners. With respect to data protection, we recognize that Canada has taken positive steps to improve its data protection regime. The U.S. pharmaceutical industry is concerned about certain aspects of the proposed regulations. The United States will use the out of cycle review to monitor Canada s progress in providing an adequate and effective IPR protection regime that is consistent with its international obligations and advanced level of economic development, including improved border enforcement and full implementation of data protection."
What to take away from this? Not surprisingly, Canada s balanced proposal for copyright reform does not leave the U.S. copyright industries particularly happy. It isn t just that they want Canada to implement the WIPO Internet treaties, they want us to implement a Canadian version of the DMCA. They interestingly question whether the Canadian plan meets WIPO standards given the exclusion of devices from our anti circumvention provisions. I think a plain reading of the WIPO Internet treaties suggests that it does. Meeting the U.S. standard is, of course, an entirely different matter.
Further, the U.S. also objects to the proposed notice and notice system for ISPs. Again, there is no surprise here. Notice and takedown may be completely ineffective, but it is the U.S. system so presumably they would like everyone to adopt it.
This represents the first shot across the Canadian bow. If history is any indicator, the copyright reform plan is going to face an onslaught of U.S. backed lobbying for stronger protections in the months ahead.
One side note for those new to these issues the references to data protection do not refer to privacy, which is not a big issue for the U.S. these days.
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The Globe and Mail ran an editorial yesterday in which it expressed strong support for CRIA s file sharing lawsuit appeal. This morning the paper published my letter to the editor
. The letter states:
TagsShareTuesday April 26, 2005
Your editorial on music downloading opens by noting that copyright holders should receive a satisfactory royalty for music downloading. Unfortunately, you fail to acknowledge that Canada has in fact established just such a royalty. The private copying levy, which consumers pay each time they purchase a blank CD, has raised more than $120 million over the past five years, the majority of which is scheduled to be distributed to Canadian music artists. Both the Copyright Board of Canada and the Federal Court of Canada have concluded that payment of the levy covers personal, non-commercial copying such as Internet music downloading.
Copyright holders indeed deserve to be compensated for their work. Given that Canadian music sales increased after last years private copying decision while Canadians continued to pay the levy, the real sour note is not the state of Canadian law but rather the industrys disturbing mix of levies, lawsuits, and disregard for Canadians privacy.