First, this bill provides a clear signal that Canada will move forward with ACTA notwithstanding some doubts over whether there is even sufficient global support to allow it to take effect (six ratifications are needed). ACTA is toxic in Europe, where officials now go out of their way to assure the public that ACTA is dead and that any new agreements will not involve efforts to revive it. ACTA has also faced serious opposition in other negotiating countries, including Switzerland (which has not signed it), Australia (where a Parliamentary Committee recommended against ratification), and Mexico (where the Senate rejected it in 2010). ACTA was promoted as a "gold standard" agreement on counterfeiting, yet the failure to garner support from many participants has left an agreement that is often cited as an example of how not to engage in international negotiations.  Given the global opposition, Canadian support for ACTA is disappointing.

Second, the government is framing this legislation as being geared toward countering harmful counterfeiting activities. Where counterfeiting raises health and safety concerns, no one would oppose measures to address it. Yet it should be noted that the data on counterfeiting has been regularly debunked as inaccurate and overstated. The U.S. General Accounting Office examined the issue in 2010 and concluded that the oft-quoted estimates are not reliable and cannot be substantiated to a data source. A year later, the Social Sciences Research Council released a major piracy report (funded by Canada's IDRC) that found little evidence of organized crime involvement in piracy activities. In 2012, the CATO Institute posted another assessment of the piracy claims, which it found were unsupportable.

Similar suspect data has been regularly used in Canada. For years, the RCMP cited figures of $30 billion in losses due to counterfeiting, but upon closer examination (using the Access to Information Act), the claims were found to be fatally flawed, based on little more than a single bullet point in a slide presentation from an industry group. The RCMP no longer cites the figure (and the bill's press release notably does not provide an estimate), but the Canadian Chamber of Commerce's IP Council still often uses it. Counterfeiting is certainly a serious issue, but the industry has consistently failed to provide reliable data to allow for a meaningful assessment of the problem and potential solutions.

Third, the decision to grant border guards increased powers without court oversight or review raises serious concerns. Customs officials are not copyright and trademark experts, yet they may now be forced to assess infringement cases including determining whether any copyright exceptions apply. If they fail to do so, it may result in wrongful seizures or detentions of works.  The bill opens the door to detention of works (they cannot be imported or exported) if created without consent of the copyright owner and if they infringe copyright. Yet there many works that are made without consent of the owner but rely upon exceptions such as fair dealing.  Those may result in disputes over whether the works infringe, which is an issue best left to the courts. With this bill, customs officials will now make the determination and send the works to the copyright owner to consider whether they think it infringes copyright.

Moreover, there is a danger that parallel imports, which are not counterfeit product, may be targeted. Those products provide pro-consumer benefits of enhanced competition since the goods are legitimate but enter the market through alternative channels. The provisions also greatly expand border controls to both imported and exported goods (current controls are limited to imported goods), but there has been no evidence that Canada is a significant source of counterfeit product. There is also far greater information disclosures, with rights holders now able to ask for greater information sharing and assistance on imports and exports.

The bill will likely be promoted as protecting public health, however, there is a danger that the provisions could be used to stop the entry of legitimate generic medicines. Sean Flynn highlighted the concern in an ACTA analysis of border measures and trademarks:

The problem with trademark infringements is particularly complex and worrying for generic medicines. Generic labels are required to be similar to the brands. They must use the same words identifying active ingredients, the same warnings and indications and other information. In addition, they often desire to have similar packaging and presentation as the brand drugs to help patients switch between brand and generic with comfort. Requiring border officials to identify which medicine labels are too “similar” to allow into the market is bound to lead to many more supply interruptions than if the measures were limited to criminally counterfeit products that intentionally use identical marks.

Similar concerns were raised by European scholars in their analysis of the ACTA provisions.

Fourth, the bill shifts toward an increased criminalization of copyright and trademark law.  It adds copyright and trademark offences to the criminal code as well as establishing the possibility of prison terms for trademark infringement.

This is a 52 page bill that makes numerous changes to the Copyright Act and Trade-Mark Act, requiring careful study. Yet the starting point is to move Canada toward ACTA, to create new border measures powers that could have adverse consequences on legitimate activity, and to extend the criminalization of copyright and trademark law in Canada.

1.    Ongoing foreign investment restrictions in the telecom sector. The government has removed restrictions for the smaller players (anyone with less than ten percent market share), but those companies are less than ideal as a market entry point given the use of spectrum that is incompatible with devices such as the iPhone, incomplete network coverage, and limited geographic footprint. The larger players - Bell, Telus, and Rogers - are far more attractive but are off-limits due to the continuing foreign investment restrictions. The solution is obvious: the complete removal of all foreign investment restrictions in telecommunications.

2.    Ongoing foreign investment restrictions in the broadcast sector.  Even if the restrictions on foreign investment were lifted in the telecom market, the restrictions in the broadcast sector would likely keep Bell and Rogers out of the hands of a foreign entity.  As I've argued before, Canada should also remove the broadcast restrictions, since Canadian broadcast licensees will follow content regulations and regulatory obligations regardless of their nationality.

3.    Failed spectrum policies. Paradis indicated that the 700 MHz spectrum auction will take place by the end of 2013. This is the same auction that was supposed to happen last year and that was completed by the U.S. in January 2008.  If the auction slips to early 2014, that will place Canada six years behind the U.S. in allocating this spectrum. The conclusion for a foreign carrier looking at the Canadian market is clear: the government just isn't serious about creating the framework to allow for vibrant wireless services.

4.    Missing digital economy strategies. Closely linked to the other failures is the absence of a digital economy strategy, despite repeated promises of one.  If the government can't articulate its vision for Canada's digital future, why would it expect a foreign company to do so?

Canada needs foreign investment to address the competitive shortcomings that plague the wireless sector.  But it will take more than speeches to encourage entry.  Rather, it will require policy action by the government to address the myriad of barriers and shortcomings in the Canadian legal and regulatory framework.

The law permits these disclosures with no reporting requirements or accountability mechanisms built into the process. According to data obtained under the Access to Information Act, the RCMP alone made over 28,000 requests for customer name and address information in 2010. These requests go unreported - subscribers don't know their information has been disclosed and the Internet providers and telecom companies aren't talking either.

Bill C-30 would have introduced new reporting requirements for these disclosures, which might have allowed for insights into what Internet providers and police are doing with subscriber information. The proposed reporting requirements needed some tweaking - there was nothing to stop police from by-passing the reporting requirements by voluntarily collecting the information - but the commitment to increased transparency on personal information disclosures was a long overdue reform.

Those provisions may have died with Bill C-30, but the government should move quickly to establish a statutorily mandated reporting system for disclosures of personal information by telecom and Internet providers.

Some Internet companies have voluntarily established transparency programs. Google was the first to do so, having posted transparency reports every six months since 2009. The company's latest transparency report provides information on requests to remove data from its search index, copyright complaints, and demands from governmental authorities for user data. 

The most recent Canadian data indicates that the company receives nearly 100 requests for user data each year from governmental authorities. Over the past 18 months, Google complied with only one-quarter of such requests.

Twitter recently followed Google's example by issuing its own transparency report. While the U.S. had by far the most requests for user data, Canada ranked third worldwide (tied with the United Kingdom) with 11 requests in the first six months of 2012.  Much like Google, Twitter complied with only a minority of requests.

While companies such as Google and Twitter voluntarily report requests for user data, Canada's telecom giants remain silent, offering no details on the number of requests, the rate of compliance, or how many Canadians are affected by the disclosures.

In fact, in the months leading up to the introduction of Bill C-30, Canadian telecom companies formed a secret working group designed to create an open channel for talks between telecom providers and government. Rather than focusing on customer privacy, those meetings included discussions on developing a compensation formula for the costs associated with disclosing subscriber information.

Both government and the providers should move to address Canada's telecom transparency gap. The government could revive the disclosure reporting requirements by including those provisions in either Bill C-55 (a warrantless surveillance bill tabled on the same day the government announced that it was killing Bill C-30) or Bill C-12 (the languishing privacy reform bill).

The telecom providers, led by Bell, Rogers, Telus, and Videotron, should follow the example established by Google and Twitter by closing the telecom transparency gap. Their customers deserve regular reports on their disclosure practices as well as aggregate data on actual disclosures of customer information without court oversight. 

Canadian officials likely view the deal as a good one for Europe and can't understand why it won't compromise on the remaining issues since even European officials acknowledge that Canada has given far more than it has received. European officials, meanwhile, presumably want to leverage their stronger position - Canada needs a deal more than Europe right now - to wait out the Canadians and win on all their issues. But were Canada to cave on everything it would leave an agreement with serious costs and questionable benefits. For example, giving in on pharmaceutical patent demands is a clear political loser - the changes would cost billions in additional health care costs just as Eli Lilly is suing the Canadian government (using NAFTA provisions) to demand that Canadian taxpayers pay the company $100 million in compensation for the loss of a patent case in court. Not an easy sale for the Canadian government (bad policy rarely is), even with better access for Canadian beef. As a result, CETA remains in limbo with the prospect that both Canada and the EU may soon find other trade negotiations more attractive.

Bands and labels will struggle to build fan bases.

This is just rhetoric. It isn't a specific example and doesn't explain how the legislation will do this.

Social media may be hampered, and you may have to unsubscribe fanbases - because you can't confirm whether they continue to want to receive electronic updates. If you have electronic newsletters or mailing lists, you may need to remove recipients, because you no longer have consent to send them, and you're prevented from seeking consent electronically.

Social media based on consent won't be hampered as the law permits this form of marketing with consent. It is true that email marketing lists will shift to opt-in, but the existing lists mentioned by Music Canada are valid for three years after the law takes effect (meaning they will likely remain valid until 2017).  Contrary to what Music Canada says, the law does not restrict using electronic consent to update those existing lists during that time period.

An independent label wouldn't be able to "cold call" a venue through email or other electronic communication to recommend they have a concert featuring one of their artists. Bands would face similar limitations to self promotion.

There are several exceptions that allow for this form of marketing. Venues that place email contact information on their websites without a notice barring unsolicited commercial email can be sent relevant electronic communications by labels or bands. Moreover, third party referrals of bands will qualify for an exception, labels or bands with a prior business relationship with a venue can use the business-to-business exception, and labels or bands with personal relationships can use those to send commercial emails to venues. This covers the vast majority of these communications, but if Music Canada is saying that spamming venues in the rare situations not covered by an exception is a key marketing strategy, perhaps it is time for a new strategy.

Your digital distribution of such things as music, videos, and e-zines delivered by email or instant messaging may trigger the legislation, especially if they contain links to additional corporate information like your website or logo.

So what? As long as you have consent, there is no concern.  In other circumstances (distribution to radio stations, etc.), the communications are covered by exceptions.

Social media campaigns may be crippled. Express consent will be required before forwarding communications to neighbours, schoolmates, acquaintances, colleagues, and certain extended family members.

Untrue. Social media campaigns based on consent are not blocked by the law. Moreover, there is an exception for personal relationships that would likely exempt the need for express consent for neighbours, schoolmates, acquaintances, colleagues, and certain extended family members.

You may need to invest in expensive processes to comply with the new across the board
requirements for express consents, disclosures, and unsubscribe formalities.

Privacy law already requires organizations that collect, use, and disclose personal information to maintain processes that respect opt-out requests. Surely Music Canada is not suggesting that its members breach current privacy laws by failing to invest in the systems needed to properly track the personal information they collect along with opt-out requests.

You may also need to make substantial investments in new tracking and compliance systems or face the threat of class action law suits from the expected CASL litigation trolls under the new private right of action.

As noted above, compliance with current privacy law requires systems to respect opt-out requests.  With respect to the threat of lawsuits, there is a certain irony that the industry that introduced lawsuits against individuals for file sharing (CRIA members first commenced such actions in 2004) and brought us the Sony Rootkit debacle is now concerned with lawsuits against its own members for failing to abide by an anti-spam and spyware law.

Judge Heather Lamoureux of the Provincial Court of Alberta considered "whether Internet access should form part of police resources provided to detainees in order to facilitate a reasonable opportunity to exercise the constitutional right to counsel." After acknowledging that many teenagers view their smartphone, iPad and other devices as essential parts of their daily lives, she noted that Google is the primary source of information for everything from maps to medical care to access to lawyers.

In fact, the judge conducted a Google search for "Calgary criminal defence lawyer" and found that within seconds there was provided with a long list of potential local lawyers. Moreover, the judge noted that police routinely use the Internet for investigations and evidence gathering.

The Charter of Rights and Freedoms grants anyone arrested or detained the right "to retain and instruct counsel without delay and to be informed of that right." For this judge, the failure to provide Internet access meant that the Charter rights had been violated, concluding:

"In the year 2013 it is the Court's view that all police stations must be equipped with Internet access and detainees must have the same opportunities to access the Internet to find a lawyer as they do to access the telephone book to find a lawyer."

The decision will undoubtedly raise eyebrows among criminal lawyers and law enforcement officials, yet it continues a growing trend around the world that elevates Internet access to a quasi-legal right. In 2010, Finland became the first country in the world to make broadband Internet access a legal right for all citizens. A year later, a United Nations report concluded that disconnecting people from the Internet is a human rights violation.

For police, the decision may have resource implications, since providing Internet access will be more costly and cumbersome than pointing to a nearby telephone. It also points to how the Internet and new technologies force the continued rethinking of longstanding rules and practices as even Hollywood films may someday feature police directing an accused to an Internet-connected computer in order to exercise their right to counsel.

Businesses claim the changes will be costly and out-of-step with the rest of the world, but the reality is that Canada is playing catch-up years after most other developed countries implemented similar safeguards.  The opt-in approach can be found in many countries including Australia, the United Kingdom, the European Union, and Japan, who have all recognized that weaker opt-out models (that permit marketing until a consumer proactively asks for it to stop) simply don't provide effective protection.

Moreover, the government has added numerous safeguards for business to the law. The general requirement may be opt-in consent, but there are many exceptions that allow for softer, implied consent. These include exceptions for existing business relationships, personal and family relationships, business-to-business emails, and third-party referrals. 

In fact, there is even an exception for email addresses that have been posted online without a notice that the poster does not wish to receive unsolicited commercial email. For companies seeking to develop lists of potential contacts, this exception ensures that will remain a possibility.

In addition to the exceptions, the business community has been granted years to comply with a transition period that could run to 2017 before a business must switch to opt-in consent for its existing customers.

Despite the numerous carve outs, the business groups claim that the law will result in significant new expenditures, including the need to maintain a database of opt-in consents and a website to allow for easy access to contact information and unsubscribe mechanisms. Yet those businesses are already required to maintain databases with opt-out information and electronic marketing without a website seems somewhat pointless.

Perhaps the most surprising demand from business groups is an expansive exception to a new requirement to obtain express consent prior to the installation of computer software.  The groups have asked the government to delay implementation of this rule indefinitely. Alternatively, they are seeking at least ten additional exceptions, including one that would permit surreptitious surveillance for private enforcement purposes.

The business groups' proposed provision would remove the need for express consent for the installation of any program designed "to prevent, detect, investigate, or terminate activities" such as the unauthorized use of a computer or the contravention of any law, whether Canadian or foreign. Once operational it would effectively legalize spyware in Canada on behalf of these industry groups and create a new mechanism for enforcing foreign laws in Canada.

The potential scope of coverage is breathtaking: a software program secretly installed by an entertainment software company designed to detect or investigate alleged copyright infringement would be covered by this exception. So too would programs designed to block access to certain websites, attempts to access wireless networks without authorization, or even key-logger programs that track unsuspecting users.

The anti-spam law was enacted with the promise of increasing consumer confidence in e-commerce by providing protections commonly found in other countries. With the latest round of lobbying, however, business groups are pressuring Industry Minister Christian Paradis to turn the law upside down by shifting from protecting consumers to protecting businesses.