The deadline for comments on Industry Canada's draft anti-spam regulations
passed earlier this week with a group of 13 industry associations -
including the Canadian Chamber of Commerce, the Canadian Marketing
Association, the Canadian Wireless Telecommunications Association and
the Entertainment Software Association of Canada - submitting a lengthy document that, if adopted, would gut much of the law. The groups adopt radical
interpretations of the law to argue for massive new loopholes or for the
indefinite delay of several provisions. I will focus on some of the
submissions shortly, but this post focuses on the return of an issue
that was seemingly killed years ago: demands to permit surreptitious
surveillance by the copyright owners and other groups for private enforcement purposes.
During the anti-spam law debates in 2009, copyright lobby groups promoted amendments that would have allowed for expansive surveillance of user computers. Coming on the heels of the Sony rootkit scandal, the government ultimately rejected those proposals (the Liberals had plans to propose such amendments but backed down),
leaving in place an important provision that requires express consent
prior to the installation of computer software. The provision states:
Read More ...
8. (1) A person must not, in the course of a commercial
activity, install or cause to be installed a computer program on
any other person's computer system or, having so installed or
caused to be installed a computer program, cause an electronic
message to be sent from that computer system, unless
(a) the person has obtained the express consent of the
owner or an authorized user of the computer system and complies
with subsection 11(5); or
(b) the person is acting in accordance with a court
order.
The law adds several wrinkles to this general requirement, including
the need for clear and prominent descriptions of the functionality
of the software in certain circumstances (including the collection
of personal information, changing user settings, or interfering with
user control over their computer) and exemptions for programs such
as cookies, HTML code, and javascripts.
The industry groups are now demanding that the government overhaul
these requirements. Its preferred approach is to simply kill the
provision altogether by referring it to a "Review Body", which it
says could be a task force or another public consultation, before
taking effect. In other words, despite considerable debate and
approval on this specific provision by Members of Parliament from
all parties, these industry groups still want it placed in
legislative limbo.
Alternatively, the groups want at least ten kinds of computer
programs excluded from the express consent requirement. The very
first should set off alarm bells for all Canadians:
a program that is installed by or on behalf of a person to
prevent, detect, investigate, or terminate activities that the
person reasonably believes (i) present a risk or threatens the
security, privacy, or unauthorized or fraudulent use, of a
computer system, telecommunications facility, or network, or (ii)
involves the contravention of any law of Canada, of a province or
municipality of Canada or of a foreign state;
This provision would effectively legalize spyware in Canada on
behalf of these industry groups. 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.
This exception could potentially cover programs designed to block
access to certain websites (preventing the contravention of a law as
would have been the case with SOPA), attempts to access wireless
networks without authorization, or even keylogger programs tracking
unsuspecting users (detection and investigation). Ensuring
compliance with the law is important, but envisioning private
enforcement through spyware without the involvement of courts,
lawful authorities, and due process should be a non-starter.
The Canadian Chamber of Commerce and other business groups want to
ensure that the anti-spam law does not block their ability to
secretly install spyware on personal computers for a wide range of
purposes. In doing so, these groups are proposing to turn the law
upside down by shifting from protecting consumers to protecting
businesses. The comment period on the draft regulations may have
closed, but it is not too late to tell Industry Minister
Christian Paradis or your local Member
of Parliament to reject demands that would gut the anti-spam
bill and legalize spyware for private enforcement purposes.
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The Canadian Radio-television and Telecommunications Commission unveiled
its much-anticipated draft wireless code of conduct lasts week, offering
a promise of new, enforceable protections for consumers. The draft
code, which is open for public comment until mid-February, generated a
mixed reaction. Some consumer groups welcomed it as a step in the right direction. But
other commentators were left underwhelmed, disappointed that the code
does little to address consumer frustrations with issues such as
long-term wireless contracts and exorbitant roaming fees.
My weekly technology law column (Toronto Star version, homepage version) notes the draft code features some welcome changes to the current wireless
landscape, including the possibility of consumer cancellation of
contracts when providers change key terms, clear limits on contract
termination penalties, and monthly bill caps when additional fees are
incurred (thereby reducing the likelihood of bill shock after a trip
abroad). Perhaps most importantly, the code is enforceable, backed by
the possibility of monetary compensation of up to $5,000.
Yet the draft code ultimately disappoints, since its underlying
philosophy is that consumer frustrations with the Canadian wireless
market can be best addressed by more information.
Read More ...
The "more information" approach is a recurring theme throughout the
code:
- Angry with expensive roaming charges? The code mandates that
carriers provide greater disclosure about fees and provide
warnings if your bill starts climbing.
- Frustrated by the use of three-year contracts as the norm in
Canada (which is longer than virtually any other developed
country)? The code requires carriers to disclose all the
costs associated with your plan.
- Surprised by a host of extra fees and charges, often disguised
as "regulatory" charges? The code stipulates that carriers use a
plain language, fully inclusive disclosure of the costs
associated with each plan.
- Exasperated by cellphones locked to a specific carrier, even
though the carriers maintain pricy termination policies that
ensure that the "subsidy" on the phone is repaid? The code may
require the means to unlock, but at a rate disclosed in the
contract.
In other words, once the code is operational (which the CRTC says
may be immediate or phased in), consumers will have far more
information about their wireless services provided in more
accessible manner, but the underlying concerns with a market that
lags behind many more competitive countries will remain largely
unchanged.
The fundamental problem with the Canadian wireless market isn’t
solely a lack of consumer information but rather the dearth of
strong competitors positioned to shake up the big three incumbent
providers (Rogers, Bell, and Telus). Solving that issue will require
more than a new code of conduct.
The CRTC could be bolder with its code - mandatory unlocking of
phones at no cost (carriers are protected by termination fees),
limits on roaming fees (as is found in Europe), and two-year
maximums on contract length by separating phone subsidies from
contractual term are all doable - but fully addressing consumer
wireless frustration will require federal and provincial governments
to act as well.
At the federal level, the most important step for Industry Minister
Christian Paradis would involve fostering a more competitive
environment. After several years with new entrants struggling to
make a serious dent in the market shares of the incumbents, it is
increasingly clear that a series of undercapitalized small players
will only yield modest change.
Instead, the government should remove all foreign investment
restrictions on telecommunications providers, opening the entire
sector to new capital and the possible entrance of a major,
world-class competitor. Moreover, the government must move forward
with the inexplicably stalled spectrum auction process, which should
generate billions in revenues and holds the promise of injecting
some additional competition into the market.
The provincial governments also have a role to play since it was
provincial initiatives on wireless consumer protection that sparked
the carriers to ask the CRTC to act. If the CRTC code fails to fully
address consumer concerns, the provincial governments could step in
with their own legally binding rules, thereby creating a patchwork
framework with long overdue consumer protections.
Exasperated by cellphones locked to a specific carrier, even
though the carriers maintain pricy termination policies that
ensure that the
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My earlier posts on Canada's anti-spam law focused on claims about restrictions involving family and personal relationships as well as the exaggerated concerns
about the impact on small and medium sized businesses. This post
tackles one of the strangest criticisms of the Canadian anti-spam law to
date: the claim
that it discriminates against charities, schools, and other
not-for-profit organizations. In fact, the opposite is true since the
law features additional protections for these groups that are not
otherwise available to conventional commercial businesses.
Read More ...
For charities, schools, and other similar organizations, there are
at least two broad exceptions that cover their business activity.
The first is the existing business relationship exception that
allows for implied consent for two years after the purchase of a
good or service as well as six months for an inquiry (there is an
additional three year delay in the implementation of this provision
once the law takes effect). The exception also covers written
contracts if dealing with something other than goods or services.
This exception is open to any organization - both for-profit and
non-profit - so long as the activity fits within the
definition. For hospitals, schools, and other non-profits,
these means that many of their services will invariably be
captured by the exception (either by way of the goods sold, services
provided, or an underlying contract). Barry Sookman argues
that these groups will be excluded from the implied consent
provision for some of their services:
For example, when a college or university provides educational
services to students, when a hospital or physician provides
medical services to patients, when a charity provides services to
the community, or when organizations such as hospitals and
universities collaborate on research, and in the course of those
activities send CEMs, none of them will be able to rely on the
implied consent EBR exception, unless serendipitously a business
relationship happens to arise from these or other interactions.
Yet several of these examples would certainly fall within an
existing business relationship (for example, the payment of tuition
fees by students). In other instances, it is hard to envision how
this creates a serious problem. In the case of medical services,
some services qualify as business activities (e.g. examinations on
behalf of an insurance company) and best practices already mandate
explicit opt-in consent for health privacy, which is widely viewed
as particularly sensitive information. As for collaborative research
between a hospital and university, those two institutions will
typically have a business agreement that governs intellectual
property issues and other responsibilities. That would allow for
business-to-business emails between the two parties. Moreover,
individual researchers would be covered by the personal relationship
exception and project funders will have a business relationship and
an underlying contract.
In addition to the existing business exception, these organizations
can also rely on the non-business relationship exception, which is
reserved for charities, political parties, and membership
organizations. This exception implies consent for a wide range of
"non-business relationships" including donations to charities and
political parties over the prior two years, volunteer work over the
prior two years for a charity or political party, attendance at a
meeting organized by a charity or political party, or membership in
club, association, or voluntary organization.
Sookman also claims that these organizations cannot rely on the
exception for openly available addresses without a do-not-contact
request. As noted
yesterday, almost anyone that publishes their email address
without a clear statement that they do not wish to receive
commercial messages is fair game. The exception is not limited to
businesses, however. The exception says implied consent is available
where:
the person to whom the message is sent has conspicuously
published, or has caused to be conspicuously published, the
electronic address to which the message is sent, the publication
is not accompanied by a statement that the person does not wish to
receive unsolicited commercial electronic messages at the
electronic address and the message is relevant to the person’s
business, role, functions or duties in a business or official
capacity
This would cover charities or other organizations that publish
emails addresses and the emails that follow are relevant to the
person's functions or duties in an official capacity with the
organization.
In short, far from discriminating against charities, hospitals, and
schools, the law actually provides them with more benefits and
flexibility than is provided for conventional businesses. Both have
long phase-in periods and broad exceptions that will permit implied
consent for years after the law has taken effect.
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The criticism against Canada's anti-spam legislation extends beyond absurd claims about restrictions involving family and personal relationships. Indeed, much of the discussion has focused on the impact of the law on small and medium sized businesses. Barry Sookman catalogs
a wide range of supposed concerns, most of which appear to envision a
world in which the only way for a new business to develop a customer
base is to obtain marketing lists and send unsolicited commercial emails
to potential customers.
It is true that the starting point of the law is that businesses must
have consent before sending commercial emails. Canada is moving to an
opt-in world that
gives consumers greater control over their in-boxes and will ultimately
provide businesses with higher quality lists of people who genuinely
want to receive their messages. Notwithstanding the default requirement
for opt-in consent, however, the law contains numerous exceptions that
are available to businesses of all sizes and which allow small and
medium sized businesses to engage in active (and likely more effective)
email campaigns. The exceptions include:
Read More ...
Personal and Family relationships. Far from being limited to
best friends, the personal relationship exception is extremely
broad, covering a wide range of relationships. For businesses
starting out, those personal relationships will often be important
and the law allows for commercial emails in many of these
circumstances.
Openly available email addresses. Almost anyone that
publishes their email address without a clear statement that they do
not wish to receive commercial messages is fair game. The law allows
for implied consent (implied in this case because they have
published their email address without the notice) where:
the person to whom the message is sent has conspicuously
published, or has caused to be conspicuously published, the
electronic address to which the message is sent, the publication
is not accompanied by a statement that the person does not wish to
receive unsolicited commercial electronic messages at the
electronic address and the message is relevant to the person’s
business, role, functions or duties in a business or official
capacity;
In other words, claims that new businesses will not be able to
identify potential business contacts and contact them via email are
false. The law allows businesses to develop a list of contacts and
to send them relevant email messages provided the email is published
without the do-not-contact statement.
Third party referrals. The new regulations have added a third
party referral exception that represents a huge loophole in the law.
It will allow businesses to greatly extend their networks without
the need for additional consents.
Business to business emails. The law includes a specific
exception for business-to-business emails that remove the need for
further consent. This ensures that existing business relationships
are largely unaffected by the law. The business-to-business
exception covers email:
to an employee, representative, contractor or franchisee of
another organization if the organizations have a business
relationship at the time the message was sent and the message
concerns the affairs of the organization or that person’s role,
functions or duties within or on behalf of the organization;
All emails sent in response to a request, inquiry or
complaint. The law includes an exception for inquiries
or requests from customers exempting email "that is sent in response
to a request, inquiry, complaint or is otherwise solicited by the
person to whom the message is sent." This exception removes the need
for further consent.
Existing business relationships. Consent is implied for
existing business relationships, which includes everything from
having purchased a product or service over the prior two years to
instances where a consumer has merely made an inquiry within the
prior six months. Moreover, this exception is effectively extended
for three years from whenever the law takes effect, giving
businesses nearly ten years from when the bill was first tabled to
ask for explicit consent. Until the explicit consent requirement
kicks in, businesses with a relationship will be entitled to rely on
implicit consent.
Non-business relationships. The law also implies consent for
a wide range of "non-business relationships." This covers donations
to charities and political parties over the prior two years,
volunteer work over the prior two years for a charity or political
party, attendance at a meeting organized by a charity or political
party, or membership in club, association, or voluntary
organization. This exception is also extended for three years from
whenever the law takes effect, giving those organizations nearly ten
years from when the bill was first tabled to ask for explicit
consent.
Purchase of existing business. The law extends the
existing business relationship even when a business is sold. In
other words, if you buy a business all their contacts and customers
may be used by the new owner.
This is a very long list of exceptions for businesses of all sizes
and hardly the catastrophe that some suggest. While it will require
some businesses to obtain express consent or to modify marketing
practices that were based on sending large scale unsolicited
commercial email, the result should be better, more effective online
marketing for businesses and greater control over their in-boxes for
Canadians.
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Yesterday's post
on the fears associated with Canada's anti-spam legislation focused on
emails between extended family members. This post will examine personal
relationships and the absurd claims that the current rules will stop
everything from emailing a teacher to promoting a lemonade stand. Barry
Sookman writes that the following would all likely be illegal under CASL:
Read More ...
- E-mailing or sending a BBM message to your child’s teacher
to ask him/her to tutor your child. A child emailing his/her
teacher for the same purpose would also be illegal.
- A student e-mailing a student a year ahead to buy a
textbook or a student trying to sell used textbooks to
students in another grade.
- A mother sending out an e-mail to her daughter’s friend to
ask her to baby sit.
- A child soliciting a parent of a friend to shovel snow or
mow a lawn for some extra cash.
- A child sending out emails to invite neighbors to buy a
glass of lemonade at his/her lemonade stand.
- A person e-mailing neighbors on the street asking for a
donation to fight a planned development or environmental
threat.
- A parent teachers group e-mailing a school principal
encouraging him or her to purchase new equipment or
learning materials or to do a renovation that would enhance
their children’s learning or learning environment.
- A child e-mailing her parents friends to buy Girl Guide
cookies or to sponsor her in a school event.
- Neighbors or acquaintances e-mailing each other to set up a
carpool and to share the costs.
- E-mails sent out to acquaintances, colleagues, and business
contacts asking them for sponsorship in a charitable event
such as to raise money for cancer research or many other
worthy causes.
- E-mailing an old friend who moved away and asking him/her
to buy you hockey tickets so that both of you could see your
home team when your visit.
- E-mailing an old friend you haven’t spoken to in a while to
help find a job or to ask for a referral or to tell the
friend about your new job (and the products and services
it sells).
- E-mailing an old classmate to ask if he/she would be
interested in investing in a new venture you are starting.
The reality is that some of these examples are not even covered by
the law without the need to delve into the regulatory exceptions.
For example, the law only covers commercial electronic messages,
which would likely exclude activities such as arranging a carpool.
Commercial electronic messages require the encouragement of
commercial activity, which the law defines as transactions, act or
conduct that is of a "commercial character". As anyone who has
arranged a carpool for their kids can tell you, a reasonable
interpretation of non-commercial carpooling would find that it does
not meet that standard (even with "shared costs").
The email from the mother to a daughter's friend to ask her to
babysit is actually an inquiry as to whether the daughter is
available to babysit (the daughter's friend is the service provider,
not the parent) and subject to the inquiry exception. The law
exempts commercial emails that are "sent to a person who is engaged
in a commercial activity and consists solely of an inquiry or
application related to that activity." In the event that the email
is confirming a prior arrangement, there is likely consent for the
message or coverage under an exception for information directly
related to an employment relationship.
There are other examples that likely involve prior consent, such as
emailing a child's teacher or school principal. Most of the
remaining examples would be exempted by the personal relationships
exception such as students emailing each other, old friends or
classmates emailing one another, or neighbours exchanging emails.
The repeated reference to neighbours emailing each other is
particularly odd. I know the email addresses of a few of my
neighbours, but only the ones with whom I have a personal
relationship. I am not aware of many neighbourhoods where everyone's
email address is widely known such that emails go out promoting
lemonade stands or local advocacy. Rather, most of that information
is disseminated in physical form, specifically because the email
addresses of all your neighbours isn't typically available. While
there may be exceptions, those are likely instances where the
community has actively requested the email addresses for use by the
community (often going door-to-door), so those on the list have
provided consent (or else it involves marketing companies linking
various databases to map contact information on a geographic basis,
which is precisely the kind of activity the law seeks to stop if
there is no consent).
Applied to Sookman's example, the lemonade stand concern makes
little sense. Emails sent to people in the neighbourhood will
invariably meet the personal relationship requirement (or have
consent) since there is no other obvious way to obtain those email
addresses. Without such a relationship or consent, the sender simply
doesn't have the necessary email addresses to send throughout the
neighbourhood. So lemonade stands may be safe, but what of many
other small and medium sized businesses? More on why the law does
not represent a dire threat to those businesses tomorrow.
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Over the past couple of weeks, there have been a myriad of posts and articles criticizing Canada's anti-spam legislation. According to some posts - primarily those by Barry Sookman - the legislation will stop family members from sending commercial email to each other, parents from promoting their children's lemonade stands, and discriminate against charities and schools.
Is this true? In a word, no. While there is little point in unpacking
each of the many outrageous claims, over the next few days I'll offer up
a few posts on some of the crazier ones.
Today's post focuses on the suggestion that families will be
stopped from sending commercial messages to other family members.
Sookman writes:
Read More ...
Under the proposed regulation, sending an email to your second
cousin offering to sell a snow blower or a used baby crib would
become illegal. (CASL has no de minimis exception.) It would be
illegal to send an email to a retired great uncle asking for an
investment or business advice to help start-up a business. It
would also be illegal for a divorced spouse to email her/his ex
spouse asking for a loan to cover unexpected expenses or medical
bills. The ex-spouse could also insist on unsubscribing from
receiving emails asking for such financial help. A child that
e-mails his/her step-parent asking for a loan to cover tuition
would also violate CASL.
Sookman's suggestion that the child and step-parent email does not
qualify as a family relationship is simply wrong as it is a marriage
to a blood relative and therefore fits within the definition in the
regulations.
As for the remaining examples, assuming that there is a personal
relationship with the second cousin, great uncle, and divorced
spouse, all of these qualify for the personal relationship
exception. The personal relationship exception covers:
“personal relationship” means the relationship between an
individual who sends the message and the individual to whom the
message is sent, if
(i) those individuals have had direct, voluntary, two-way
communications and it would be reasonable to conclude that the
relationship is personal taking into consideration all relevant
factors such as the sharing of interests, experiences, opinions
and information evidenced in the communications, the frequency of
communication, the length of time since the parties communicated
and if the parties have met in person, and
(ii) the person to whom the message is sent has not indicated
that they no longer wish to receive any commercial electronic
messages, or any specified class of such messages, from the person
who sent the message.
This a broadly worded, flexible exception (arguably too broad) that
surely covers relationships with extended family members, who will
have had direct, voluntary communications, will have often have met
in person, and would have common experiences. Leaving aside the fact
that no enforcement agency would ever contemplate taking action in
these circumstances, they will not need to do so since the law
already exempts such messages through regulation. With the family on
safe ground, tomorrow's post will take a closer look at the lemonade
stand and other neighbourhood activities.
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Canadians frustrated with ever-increasing cable and satellite bills
received bad news last week with the announcement that the Canadian
Radio-television and Telecommunications Commission will consider whether
to require cable and satellite companies to include nearly two-dozen
niche channels as part of their basic service packages. If approved,
the new broadcast distribution rules would significantly increase
monthly cable bills with consumers forced to pay for channels they may
not want.
My weekly technology law column (Toronto Star version, homepage version) notes that two issues sit at the heart of the broadcast distribution rules. First,
whether the CRTC should grant any broadcaster mandatory distribution
across all cable and satellite providers such that all subscribers are
required to pay for them as part of their basic packages. Second, in the
absence of mandatory distribution, whether broadcast distributors
should be required to at least offer the services so that consumers have
the option of subscribing.
Read More ...
Twenty-two channels are vying for mandatory distribution status as
part of the current review, which includes a comment
period and a hearing scheduled for late April. Some have
likened the process to winning the lottery, since mandatory
distribution guarantees broadcasters millions in revenues. For
example, 25 cents per subscriber - the amount the Aboriginal Peoples
Television Network currently receives - generates $30 million in
revenue in each year for the broadcaster (it wants the fee to
increase to 40 cents per subscriber).
These proposed cash grabs could add hundreds of dollars to cable and
satellite bills if approved. Sun TV News, which previously disavowed
mandatory distribution by likening it to a tax on all cable and
satellite subscribers, now wants the CRTC to require those
subscribers to pay it 18 cents per month until 2017.
Starlight, a proposed new Canadian film channel, hopes to generate
hundreds of millions in revenues from mandatory distribution, much
of which would be used fund the creation of new Canadian films.
While the financial benefits for broadcasters are enormous, the
policy represents a near-complete elimination of consumer choice for
the channels at issue. Rather than convincing millions of Canadian
consumers that their services are worth buying, the broadcasters
need only convince a handful of CRTC commissioners that their
service meets criteria
such as making "an exceptional contribution to Canadian expression."
That is supposedly a high bar, yet it is surely far easier than
convincing millions of people to pay for your service each month.
Last year, CRTC chair Jean Pierre Blais emphasized
that the Commission's top priority was to "put Canadians at the
centre of their communications system." The mandatory
distribution rules do the opposite. Rather than focusing on
consumer interests and choice, the rules place broadcasters at the
centre of the communications system by offering up the prospect of
millions in revenue without regard for what consumers actually want.
There are few, if any, broadcasters that can be considered so
essential as to merit mandatory distribution. Niche cultural
broadcasters have a myriad of distribution possibilities and should
be forced to compete like any other content creator or
distributor. In fact, even broadcasters that position
themselves as "public services" can often be replicated by
Internet-based alternatives.
While the anti-consumer mandatory distribution rules should be
scrapped, the Commission can enhance consumer choice by making "must
offer" the default for broadcast services.
Cable and satellite companies should theoretically welcome the
chance to offer more options to subscribers, but the vertical
integration between broadcasters and broadcast distributors may
create anti-competitive incentives. With Bell, Rogers, Shaw, and
Videotron each controlling a major broadcaster, it may make economic
sense for those distributors to prioritize their own channels while
offering their customers less choice.
The role for a CRTC that places Canadians at the centre of their
communications system is obvious - stop treating Canadians as ATMs
for the broadcasters by dropping mandatory distribution altogether,
while requiring broadcast distributors to offer all licensed
channels to their subscribers in a pick-and-pay format so that at
long last consumers get to decide what they want to watch and pay
for.
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The European Commission has posted a public update
on the status of the agricultural provisions in the proposed Canada -
EU Trade Agreement. The EC says the goal is to conclude the agreement at
a Ministerial meeting in Ottawa on February 7th, though reports suggest
that may be overly optimistic. The state of the agricultural
provisions is described as follows:Read More ...
In agriculture, both sides have agreed to liberalise most trade,
except for products considered sensitive: beef, pork and sweet
corn for the EU; and products under the supply management regime,
i.e. dairy, poultry and eggs, for Canada. An understanding has
been reached that these products will not be liberalised but that
new market access will be granted in the form of tariff quotas,
with Canada asking for the exclusion of poultry and eggs.
A major stumbling block in this end-game is the establishment
of tariff quota volumes which would be acceptable to both sides.
Canada is asking important volumes of beef, in particular fresh
and chilled, as well as of pork, while offering very modest dairy
volumes in exchange.
The Commission is well aware that the EU capacity to open its
meat markets is limited, and any market opening needs to take into
consideration the interaction between the different free-trade
agreements, on-going and forthcoming ones.
Positive results can be expected in the wine and spirits
sector, with disciplines on discriminatory practices applied by
Canadian provinces. The EU has also made clear that a satisfactory
result is necessary on geographical indications, i.e. enhanced
protection of EU geographical indications in Canada.
Note that the geographical indications provisions - which target
products such as feta cheese or parma ham - could include new rules
on border measures. While the new information is helpful (and
largely confirms prior media reports), it is worth asking why almost
all official CETA information now comes from Europe as a cone of
silence has descended on the Canadian delegation. For several
years, Canadian officials provided regular updates with an
opportunity for open questions. The last update occurred in October
with no new updates despite near-continuous negotiations toward a
final text and multiple updates and leaks from Europe.
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While there is no shortage of fear mongering about Canada's anti-spam
legislation,
Ottawa-based law firm LaBarge Weinstein recently demonstrated what most
organizations need to do in order to comply with the law as Canada
transitions to an opt-in consent requirement for commercial messaging.
The key requirement for those companies that have long relied on
electronic marketing is pretty simple: just ask for consent.
The firm recently sent messages to its current mailing list to obtain
opt-in consent for continuing to send commercial electronic messages.
The firm notes:
In anticipation of Canada's new anti-spam laws, we would like to
ensure that we have your consent to receive our publications,
announcements, event invitations, and other communications we send from
time to time for the purpose of: (i) sharing information with you; and
(ii) establishing, developing and/or managing our relationship with you.
Accordingly, if you wish to continue to receive communications
from us, please provide the information requested below and click on the
"Give Consent Here" button. If we do not receive your consent once the
new anti-spam laws have come into effect, we may be unable to continue
sending you updates. If you have any questions, or if you wish to
withdraw your consent at any time, please feel free to contact us
For thousands of Canadian organizations with mailing lists and active
marketing activities, once they ask for and obtain consent, there is no
need to focus on exceptions or loopholes in the law. Simply ask your
customers for consent - the slow pace of implementation means that all
organizations have years to do it - and you've met the major requirement
to continue electronic marketing to them in compliance with
Canada's new law. casl, compliance, privacy, spam Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareThursday January 24, 2013 |
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The Internet community has been reeling for the past week as it grapples
with the suicide of Aaron Swartz, a prominent digital rights activist
who left a remarkable legacy for a 26-year old. Swartz's contributions
are used by millions of people every day as he played a key role in
developing the specifications for RSS (which makes it easy to syndicate
online content), Creative Commons licences (which makes is easy to make
creative works freely available), and the popular website Reddit.
My weekly technology law column (Toronto Star version, homepage version) notes that while much of the immediate focus has centered on mental health issues,
draconian computer crime laws, and the bewildering prosecution of Swartz
for downloading millions of academic articles - a U.S. prosecutor was
seeking as much as 35 years in jail despite the fact that Swartz did not
benefit from the downloads and the source of the articles did not want
to pursue legal action - the more notable legacy was his effort to make
information more openly and freely available.
Read More ...
Swartz aggressively pursued initiatives to increase the availability
of information, particularly scientific and legal documents. His
efforts were controversial, yet they point to mounting expectations
that public information (or information funded by the public) be
made easily accessible.
In recent months, there have been some important developments in
Canada in furthering Swartz's vision. The Canadian Institutes
of Health Research, the federal government's health research funding
agency, recently launched a new open access policy that
requires funded researchers to make their peer-reviewed publications
freely available within 12 months of publication. Given the millions
of tax dollars invested in CIHR research annually, the mandatory
open access policy should ensure that the public has access to the
cutting-edge health research it has helped fund.
Open availability of legal materials is also fast becoming the
standard in Canada. The Canadian Legal Information Institute
(CanLII), which is Canada's leading source of free legal materials,
now houses more than one million court judgments as well as tens of
thousands of legislative documents from all Canadian provincial,
territorial and federal jurisdictions. Canadian lawyers, who pay an
annual fee to maintain the site as part of their dues, provide the
financial support to ensure that CanLII is sustainable (I am a
CanLII board member).
After years of limited progress, digitization efforts in Canada are
also beginning to bear fruit. The Internet Archive Canada,
which has teamed with academic libraries across Canada, recently
announced that it has digitized over 400,000 texts in Canada.
Although relatively unknown, the Internet Archive Canada now boasts
the largest online collection of Canadian public domain materials
since virtually all copyright-expired books in the University of
Toronto library have been digitized and are freely accessible and
downloadable.
The question facing many Canadian institutions is what comes
next. For academic research, the CIHR open access policy
should be emulated by the other federally funded granting
institutions so that all taxpayer-funded research features a
requirement that the resulting publications be made openly available
to the public within months of publication.
Access to legal materials has been a major success story, yet much
more can be done. Legal publishers are beginning to make some of
their texts freely available and law schools may soon rely on free,
online cases as their primary source for legal casebooks. As those
materials gravitate online, the pressure is likely to mount to
ensure all Canadian cases and statutes are freely available, thereby
granting the public full access to the law.
Yet perhaps the biggest step may come as part of efforts to move
digitization efforts beyond public domain works toward the creation
of a national digital library featuring millions of Canadian titles.
Such an initiative would undoubtedly face implementation challenges
with respect to copyright (it would likely rely on the newly
expanded fair dealing laws), but the vision of universal open access
in Canada seems increasingly possible and is consistent with the
vision to which Aaron Swartz dedicated his life.
canlii, cihr, open access, swartz Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday January 22, 2013 |
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