The European Parliament's Committee on Civil Liberties, Justice and Home Affairs has issued a detailed draft report
on the U.S. surveillance activities and its implications for European
fundamental rights. The report loops Canada into the discussion, noting
Canada's participation in the "five-eyes" consortium and expressing
concern about the implications for trust in the Canadian legal system. The report states:
whereas according to the information revealed and to the findings of
the inquiry conducted by the LIBE Committee, the national security
agencies of New Zealand and Canada have been involved on a large scale
in mass surveillance of electronic communications and have actively
cooperated with the US under the so called ‘Five eyes’ programme, and
may have exchanged with each other personal data of EU citizens
transferred from the EU;
whereas Commission Decisions 2013/651 and 2/2002 of 20 December
2012 have declared the adequate level of protection ensured by the New
Zealand and the Canadian Personal Information Protection and Electronic
Documents Act; whereas the aforementioned revelations also seriously
affect trust in the legal systems of these countries as regards the
continuity of protection afforded to EU citizens; whereas the Commission
has not examined this aspect.
Read More ...
TagsShareThursday January 09, 2014
As a result of the concerns with Canadian surveillance, the report
recommends a re-examination of the adequacy finding of Canadian
Calls on the Commission and the Member States to assess without
delay whether the adequate level of protection of the New Zealand
and of the Canadian Personal Information Protection and Electronic
Documents Act, as declared by Commission Decisions 2013/651 and
2/2002 of 20 December 2001, have been affected by the involvement
of their national intelligence agencies in the mass surveillance
of EU citizens and, if necessary, to take appropriate measures to
suspend or reverse the adequacy decisions; expects the Commission
to report to the European Parliament on its findings on the above
mentioned countries by December 2014 at the latest;
For non-privacy lawyers, the European Union law requires that non-EU
countries maintain an "adequate" standard of data protection.
Countries that do not meet that standard run the risk of being
subject to restrictions on data transfers between themselves and all
EU members states. The importance of receiving an adequacy finding
was one of the prime motivations behind enacting private sector
privacy law. As the Canadian government told
the Supreme Court of Canada last year:
Parliament also enacted the PIPEDA, in part, in response to the
European Union’s (the EU) 1995 Data Protection Directive (EU
Directive). The EU Directive regulates the processing of personal
information within EU member states, and requires member states to
pass legislation that restricts the transfer of personal
information to non-EU countries unless they provide an “adequate
level of protection” of personal information, or alternative
measures are put in place to protect privacy (such as model
contracts). The EU has determined that through the PIPEDA
(including its provision for recognizing substantially similar
provincial legislation), Canada meets this standard. The conferral
of adequacy status on Canada allows for the free flow of data
between Canada and EU member states.
Canadian law received the adequacy
in 2002. The European Parliament report now says the
finding should be re-examined in light of the revelations of
Canada's active participation in global surveillance activities.
Given the Canadian government's emphasis on expanding European trade
through the new Canada - EU Trade Agreement, a change in the
adequacy status of Canadian privacy law could be enormously
damaging. Moreover, given that the European Parliament will
ultimately be required to approve CETA, the concerns about the
trustworthiness of Canadian law within the EP could lead to
opposition to the broader trade deal.
Months of surveillance-related leaks from U.S. whistleblower Edward
Snowden have fuelled an international debate over privacy, spying, and
Internet surveillance. The Canadian-related leaks - including
disclosures regarding spying on the Brazilian government and the
facilitation of spying at the G8 and G20 meetings hosted in Toronto in
2010 - have certainly inspired some domestic discussion. Ironically, the
most important surveillance development did not involve Snowden at all.
My weekly technology column (Toronto Star version, homepage version) notes that late last year, Justice Richard Mosley, a federal court judge, issued a
stinging rebuke to Canada's intelligence agencies (CSEC and CSIS) and
the Justice Department, ruling that they misled the court when they
applied for warrants to permit the interception of electronic
communications. While the government has steadfastly defended its
surveillance activities by maintaining that it operates within the law,
Justice Mosley, a former official with the Justice Department who was
involved with the creation of the Anti-Terrorism Act, found a
particularly troubling example where this was not the case.
Read More ...
TagsShareWednesday January 08, 2014
Mosley's concern stems from warrants involving two individuals that
were issued in 2009 permitting the interception of communications
both in Canada and abroad using Canadian equipment. At the time, the
Canadian intelligence agencies did not disclose that they might ask
their foreign counterparts (namely the "five eyes" partners in the
U.S., U.K., Australia, and New Zealand) to intercept the foreign
In June 2013, the CSEC Commissioner, who is responsible for
reviewing CSEC activities, issued his annual
. It included a cryptic recommendation that the agency
"provide the Federal Court of Canada with certain additional
evidence about the nature and extent of the assistance CSEC may
provide to CSIS."
That recommendation caught Mosley's attention, who ordered CSEC and
CSIS to appear in court to disclose if the recommendation was linked
to the warrants he had issued and discuss whether the additional
evidence might have had an impact on the decision to grant the
warrants in the first place.
It turns out that the additional evidence - which involved several
warrants including those issued by Mosley - was indeed the fact that
CSEC was tasking foreign agencies to conduct interceptions on its
behalf. Based on the new submissions, Mosley concluded that
Canadian intelligence agencies strategically omitted disclosing the
information as it admitted that the evidence provided to the court
"was ‘crafted' with legal counsel to exclude any reference to the
role of the second parties."
The failure of Canada's intelligence agencies to meet their legal
obligations of full and frank disclosure raises serious questions
about the adequacy of oversight over Canada's surveillance
activities. When concerns were raised last year about the
activities, then- defence minister Peter MacKay assured the public
that there is "rigorous" oversight and that all aspects of the
programs were carried out in compliance with the law.
The federal court ruling raises real doubt about the validity of
those assurances. Indeed, there are lingering questions about both
the impartiality of Justice lawyers who provided advice to "craft
evidence" and the ability for the federal court to serve as a key
oversight mechanism for Canadian surveillance, particularly when
some programs do not require court approval and reports from the
CSEC commissioner have faced lengthy delays.
The deliberate attempt to mislead the key oversight body by omitting
relevant information should anger more than just Mosley, who clearly
felt that he was duped by CSIS. In response, the government should
commission an independent review to examine current oversight
mechanisms, identify shortcomings on both oversight and the law, and
recommend potential reforms to salvage a system that is under
increasing public scrutiny and criticism.
The coming year is likely to be a very significant one for law and
technology. As the year unfolds, my recent law and technology column (Toronto Star version, homepage version) lists 14 questions (along with
possible answers) that will go a long way to determining the path of
Canadian technology law policy.
1. Will the government finally unveil a national digital strategy?
The long-promised national digital strategy could become a reality in
2014 after years of inaction. Industry Minister James Moore is on the
verge of clearing out the lingering policy issues he inherited and may
be ready to set his own path on a digital strategy.
2. Will the wireless spectrum auction be judged a failure?
The contentious wireless spectrum auction should take place early in
2014, but with few, if any, new competitors, the auction seems destined
to do little more than entrench the status quo.
Read More ...
3. Whose roaming regulations will come first: the
government's or CRTC's?
Both the government and the CRTC have embarked on domestic wireless
roaming initiatives that should come to fruition in 2014. The
government plans to amend the law to address wholesale roaming
pricing that hurts smaller players, while the CRTC is engaged in a
fact-finding exercise on roaming that could lead to new regulations.
4. What else will the government do to address
With the government spending millions to promote the competitive
shortcomings of the Canadian wireless market, addressing roaming
pricing is likely only the start with the possibility of a fully
regulated wholesale market that could facilitate more competition.
5. Who will be the next Privacy Commissioner of
The search is currently underway for the next Privacy Commissioner
of Canada. Given the privacy reform delays and the mounting concern
over surveillance, the next commissioner will immediately be placed
on the hotseat.
6. Will the Snowden surveillance revelations
reverberate in Canada?
Public concern over ubiquitous surveillance has mounted in recent
months with the steady stream of Snowden leaks. The Canadian
government has said little to date, but silence may not be an option
for much longer should there be further disclosures about Canadian
involvement in global surveillance activities.
7. How will the government handle Bill C-13, the
lawful access bill?
The return of lawful access legislation - now framed as a
cyber-bullying bill - has met with criticism from all sides of the
political spectrum. The government may seek to diffuse the concern
by sending the bill to committee for review after first reading,
thereby signaling its willingness to entertain amendments.
8. How will the government unbundle television
The government's commitment to a pick-and-pay model for cable and
satellite television services will emerge as a hot issue in the
coming year with some broadcast distributers opposing the
pro-consumer plan. While there is little doubt the government will
stick with the policy, there is no clear-cut implementation plan.
9. What policy changes will result from the CRTC's
The CRTC has embarked on a national conversation on television, but
the outcome remains unknown. Removal of foreign investment
restrictions and simultaneous substitution policies are possible
changes that would shake up in the market.
10. How will Alberta fix its privacy law?
The Supreme Court of Canada has given Alberta one year to amend its
privacy law, which it recently ruled is unconstitutional. The
Alberta reforms may serve as a model for other provinces and the
11. What is the future of the Trans Pacific
Canada's participation in the TPP negotiations could have major
ramifications for domestic intellectual property and e-commerce law.
The TPP talks stalled late last year, but U.S. pressure to conclude
a deal could soon lead to dramatic changes to Canadian law.
12. What is in the fine print of the Canada -
European Union trade deal?
The Canada - EU trade agreement negotiations may have concluded, but
the actual text remains a secret. Its release this year will finally
allow for detailed analysis of costs and benefits of the proposed
13. Will Eli Lilly terminate its $500 million
lawsuit against Canada?
Eli Lilly, which is suing the federal government for $500 million
due to two invalidated patents, seems to hope that the threat of
litigation will generate momentum for patent law reform. There is no
sign that the government will cave to the pressure.
14. Will the federal court order TekSavvy to
disclose the identity of thousands of subscribers?
The biggest current copyright case before the courts is the attempt
to force TekSavvy, a leading independent Internet provider, to
disclose the identity of thousands of subscribers accused of
unauthorized downloading. Depending on the outcome, the decision
could open the door to copycat litigation.
TagsShareTuesday January 07, 2014
With Edward Snowden and the great wireless war of 2013 leading the
way, law and technology issues garnered headlines all year long. My weekly technology law column (Toronto Star version, homepage version) takes a
look back at 2013 from A to Z:
A is for Americangirl.ca, a Canadian domain name that was the
subject of two dispute claims in 2013. The popular doll company
relied on a quirk in the policy that permitted a follow-up complaint
after its first case was rejected.
B is for Bell TV, which a federal court ordered to pay $20,000 for
violating the privacy of a customer. The case arose when Bell TV
surreptitiously obtained permission to run a credit check by
including it as a term in its rental agreement without telling the
C is for the Competition Bureau of Canada, which launched an
investigation into alleged anti-competitive practices by search
Read More ...
TagsShareMonday December 30, 2013
D is for Distributel, an independent Internet provider that
successfully defeated demands that it disclose the identities of
some its subscribers in a mass copyright lawsuit. After Distributel
contested the request, the rights holder dropped
E is for the Electronic
Commerce Protection Regulations
, the long-delayed anti-spam
law rules. The regulations were finalized in December, paving the
way for the law to take effect next year.
F is for Kevin Fearon, whose robbery arrest has sparked a privacy
case that is headed to the Supreme Court of Canada. Police searched
Fearon’s cellphone without a warrant, claiming that the phone was
not password protected. The Ontario Court of Appeal ruled
that the search was lawful.
G is for gorgonzola, one of several cheeses that will be subject to
new geographical indications rules as part of the Canada –
European Union trade agreement
H is for Héritage, the digitization project that generated considerable
following revelations that some Library of Canada
materials might initially be placed behind a paywall.
I is for isoHunt, the notorious Canadian-based torrent search site
after a U.S. court ruled that it violated copyright law.
J is for Justice Ministers Robert Nicholson and Peter MacKay. After
that any new Criminal Code reforms would not include lawful access
provisions, MacKay promptly reneged
on the commitment
by inserting many such powers in a
K is for Kickstarter, the online crowdsource funding website. The
Ontario Securities Commission worked
on establishing the legal rules for crowdsourced funding.
L is for dot-land, one of the new top-level domains
that were added to the Internet’s root this year with hundreds more
to follow in the months ahead.
M is for Industry Minister James Moore, who led the government’s
effort to enact anti-counterfeiting
N is for the Nike shoes that were at the centre of dispute between
eBay and a Quebec-based seller. The court sided
with the seller
, rejecting the validity of some terms in
eBay’s online contract.
O is for the national
open access policy
being developed by Canada’s federal
research granting agencies.
P is for pick-and-pay pricing for television channels, which the
federal government promised
to pursue in its Speech from the Throne.
Q is for the Queen
, a Supreme Court of Canada decision in which the court
affirmed the privacy value of metadata.
R is for roaming
, which the government announced it would pursue
to protect new entrants seeking to offer national access to wireless
S is for Edward
. Snowden’s months-long leaks of surveillance
information generated a global debate on privacy and surveillance,
while Swartz’s tragic suicide raised awareness of open access and
overly aggressive copyright enforcement.
T is for the Trans Pacific
, a massive trade agreement currently being
negotiated by a dozen countries including Canada.
U is for United Food and Commercial Workers Local 401, which
successfully challenged the constitutionality
of Alberta’s privacy legislation
at the Supreme Court of
V is for Verizon, the U.S. telecom giant, whose potential entry to
a massive lobbying and advertising campaign on the state of wireless
W is for the wireless
code of conduct
, which effectively limited consumer wireless
contracts to two years.
X is for the anonymous defendants who were served
in a defamation lawsuit launched by former
Toronto Maple Leafs president Brian Burke.
Y is for York University, which was sued
by Access Copyright for copyright infringement due its reliance on a
widely accepted policy on fair dealing.
Z is for Zyprexa, one of two invalidated patents that sit at the
heart of a $500
filed by pharmaceutical company Eli Lilly
against the Government of Canada.
The Supreme Court of Canada issued another copyright decision
this morning, ruling in favour of Claude Robinson in a longstanding
copyright infringement battle over a children's television series.
Robinson was vindicated in the decision with an award of millions of
dollars. The case is an important one for determining whether a
substantial part of a work has been copied and for how to assess
copyright damages. The case also notably emphasizes the importance of
copyright balance, this time within the context of the scope of
protection afforded by the Copyright Act. In assessing the scope of the
protection, the court states:
"The need to strike an appropriate balance between giving protection
to the skill and judgment exercised by authors in the expression of
their ideas, on the one hand, and leaving ideas and elements from the
public domain free for all to draw upon, on the other, forms the
background against which the arguments of the parties must be
The Court's obvious awareness of how balance touches on all aspects of
copyright analysis - whether user rights or scope of protection -
continues to provide the foundation for copyright law in Canada.TagsShareMonday December 23, 2013
Howard Knopf points to an interesting Copyright Board of Canada decision that provides a instructive lesson in how copyright collectives fail. At issue is the Educational Rights Collective Canada,
a collective formed in 1998 to collect royalties for educational
copying of broadcast programs in classrooms. The ERCC, which includes
the CBC as a founding member, asks the Copyright Board to effectively
put an end to its tariff as it admits that it has never distributed any
money to rights holders and is hundreds of thousands of dollars in debt.
How did it come to this? The ERCC acknowledges that royalties for its
tariff have never exceeded $10,000 per year, however, the collective's
debts stand at $830,000. There is little cash on hand and its creditors
(which presumably include the CBC) will receive less than 5 percent of
what they are owed. The debt was largely accumulated in trying to create
its tariff in the first place. Yet it is difficult to understand how
broadcast organizations ever thought this was a good idea. Even before
the advent of Internet-based video, the law permitted schools to copy
news and news programs for playback in the school for one year without
payment. Today, the tariff is a non-starter since Bill C-11
significantly expanded the rights of educational institutions.
The decision to wind-up the ERCC reflects both changing laws and a
tariff that has always offered very limited value. While some
collectives are insistent that changing laws should have little impact
on their business, the reality is that new technologies, methods of
distribution, and user rights will invariably have an impact on
copyright collectives and the value associated with their licences. The
ERCC was simply a bad idea in which millions was spent by both sides to
decide on royalties worth a fraction of expense, but all must recognize
that the shifting environment requires a recalibration of the value of
certain licences and a re-assessment of the use of the Copyright Board
process.TagsShareFriday December 20, 2013
Industry Minister James Moore yesterday took another step toward improving the state of wireless competition in Canada by announcing
plans to cap wholesale domestic roaming fees at the same rates the
companies charge their own customers. The cost of domestic roaming has
been a persistent concern for new entrants and regional wireless
carriers, who argue that the national carriers increase wholesale prices
for roaming that render the smaller players less competitive. The new
government reforms will put an end to those concerns. Moreover, it plans
to create tough new penalties for companies that violate the wireless
code or other regulatory requirements, a move that may increase
While the usual critics will moan that the latest changes are indicative
of a wireless policy with ever-changing rules, the reality is that the
government has made a clear commitment toward addressing the state of
wireless competition in Canada. Some of its hopes may have been thwarted
- the entry of Verizon tops that list - but identifying and addressing
competitive barriers should be a continuing process with regular reforms
as needs arise.
Read More ...
TagsShareThursday December 19, 2013
The lingering question is therefore what other steps the government
may take in order to address ongoing competition concerns in a
market that seems unlikely to attract significant new
facilities-based competitors in the short term. The CRTC has focused
on consumer-oriented competition concerns in its wireless code. For
example, the Competition Bureau identified switching costs that
inhibit competition in its submission
to the CRTC's wireless code consultation, which led to limits on the
term of contracts, rules on unlocking devices, and the minimization
of termination fees.
Given that the government remains concerned with the state of
wireless competition (Moore acknowledged
yesterday that "it is not at its maximum potential"), once it is
satisfied there is little else that can be done to assist existing
players, it may go back to the drawing board in an effort to attract
new entrants. Potential policies include a complete removal of
foreign investment restrictions, pro-competitive policies on future
spectrum auctions, or the creation of a regulated wholesale wireless
market that would facilitate the entry of MVNOs - mobile virtual
network operators. Critics suggest that MVNOs offer limited
potential for serious competition, but a steady stream of new
entrants aided by regulated wholesale pricing could shake up the
Canadian market. In fact, given the government's new found
willingness to intervene in the wholesale pricing arrangements on
domestic roaming, the introduction of policies to facilitate MVNOs
may not be far behind.
The government's promise to implement a "pick-and-pay" television model
that would allow consumers to subscribe to individual channels from
cable and satellite providers garnered significant attention this fall.
The approach was promoted as a pro-consumer reform that better reflects
expectations that the public controls when, where, and on what device
they watch broadcast programming.
Consistent with the government's policy commitment, the Canadian
Radio-television and Telecommunications Commission will soon report on
the regulatory implications of such a reform. Changing cable packages
may only be the beginning, however, as CRTC Chair Jean-Pierre Blais has
stated that the regulator needs to "develop a regulatory framework that
will be flexible enough to be adapted to the new technological reality."
My weekly technology law column (homepage version, Toronto Star version) notes the unbundling of television packages represents the broadcast
distribution side of the changing environment, but the flip side of the
coin involves the need for changes to Canadian broadcast policy. If
Industry Minister James Moore and the CRTC are prepared to shake up the
way Canadians access television, they should also consider changing
longstanding and increasingly outdated broadcast rules, starting with
the gradual elimination of "simultaneous substitution" policies.
Read More ...
Simultaneous substitution dates back to 1971, when the CRTC
published a detailed policy statement for the nascent cable industry
that allowed for the substitution of local commercials for U.S.
advertisements where the same program ran on Canadian and U.S.
channels at the same time. The effect was to simultaneously impose
the Canadian feed on both the Canadian and U.S. channels. The
Supreme Court of Canada upheld the validity of the policy in 1977,
leading to decades of frustrated Super Bowl viewers who are unable
to see the U.S. commercials during the game.
Canadian broadcasters have been big boosters of the simultaneous
substitution policy, claiming that it generates significant revenues
that can be used to support more expensive and less profitable
Canadian programming. The U.S. programs can be licensed for a
fraction of the cost of original Canadian programming and
simultaneous substitution increases the visibility of Canadian
advertising by placing it on multiple channels.
Yet despite the purported advantages, simultaneous substitution has
come at a heavy price to the independence of Canadian broadcasters.
Given their reliance on the policy, U.S. broadcasters effectively
control the Canadian prime time broadcast schedule since the
Canadian priority will be to match whatever the U.S. counterpart is
broadcasting. If the U.S. broadcaster moves the time or date of a
program, the Canadian broadcaster typically matches the change in
order to retain simultaneous broadcast.
Moreover, Canadian programming invariably suffers as a result since
Canadian broadcasters often limit their promotion of domestic
programs and can rarely guarantee a steady placement in the
programming schedule. U.S. programming also becomes more expensive,
since simultaneous substitution increases its economic value.
The new technological reality suggests that simultaneous
substitution should become less and less important over time. Given
consumer ability to watch programs through a myriad of non-broadcast
avenues such as cable on-demand features, Internet streaming,
personal video recorders, or online subscriptions, viewing a program
in its designated time slot is increasingly part of a bygone era.
There is little doubt, however, that broadcasters will fight to
retain the policy. Bell Media said earlier this fall that it would
support a policy that would block Canadian access to U.S. channels
altogether if simultaneous substitution were removed. Alternatively,
it favours a non-simultaneous substitution policy that replaces U.S.
commercials whenever the program airs.
Canadian broadcasters may have been content to compete largely on
picking U.S. winners in the past, but future success will depend on
developing their own original content to sell to a global audience.
Simultaneous substitution creates a protected market that delays the
inevitable. The policy may have made sense in the 1970s to support
the development of the Canadian broadcast distribution system, but
if the government is serious about bringing broadcast into the 21st
century, it is simultaneous substitution that should face
TagsShareTuesday December 17, 2013
Long before sites such as Youtube and Twitter were even created, the
Canadian government established a national task force to examine
concerns associated with spam and spyware. The task force completed its
work in May 2005, unanimously recommending that the government introduce
anti-spam legislation (I was a member of the task force). Four years
later, then-Industry Minister Tony Clement tabled an anti-spam law,
which underwent extensive committee review before receiving royal assent
in December 2010.
My technology law column last week (Toronto Star version, homepage version) notes that while most expected the government to quickly bring the new law into
force, the regulation-making process became bogged down by an intense
lobbying effort designed to sow fear, doubt, and uncertainty about the
legislation. Business groups relied upon implausible scenarios to argue
that Canada would be placed at an economic disadvantage, despite the
fact that government officials were able to identify over 100 other
countries that have similar anti-spam regimes. The lobbying was a
partial success, however, as the regulations went through two drafts and
three more years of delay.
Almost a decade after Canada started down the path toward anti-spam
legislation, Industry Minister James Moore announced earlier this month that the
regulations are now final and the law will begin to take effect next
year. There will be still yet more implementation delays - the anti-spam
rules start on July 1, 2014, safeguards on software installations begin
on January 15, 2015, and a private right of action that facilitates
lawsuits to combat spam will be delayed until July 1, 2017 - but it
appears that Canada will finally get an operational anti-spam law.
Read More ...
What will the new law mean for Internet users and businesses?
For millions of Canadian Internet users, the law should provide them
with greater control over their in-boxes since it is grounded in an
"opt-in" approach that requires marketers to obtain customer consent
before sending commercial electronic messages. The shift to opt-in
consent will be felt across all marketing activities as consumers
increasingly expect that their personal information will only be
used with their prior permission.
The law is unlikely to eliminate all spam - no law can
single-handedly accomplish that - but with several large
Canadian-based spamming organizations operating within the country,
enforcement agencies will now have the tools to bring legal actions
that could yield multi-million dollar fines and grind spamming
activities to a halt.
Canadian businesses will have to adjust to the new law, but most
already maintain databases of opt-out consents and provide their
customers with information on how they can unsubscribe from further
marketing materials. The new law establishes some additional form
requirements and shifts toward opt-in consents, but the fundamental
need to actively manage personal information remains unchanged.
The most challenging aspect of the law may come from the myriad of
exceptions that have been incorporated into the law and its
regulations. For example, last week the government expanded the
exceptions for business-to-business emails, for charities that send
emails for fundraising purposes, for the first email sent as a
result of a third party referral, for political parties and
candidates, and for messages that respond to consumer complaints or
There are numerous other exceptions available to businesses, but the
simpler compliance approach will be to ask consumers for consent.
The law includes a long phase-in period for existing consumer
relationships, providing ample opportunity to obtain a consent that
ensures businesses can use the personal information indefinitely (or
until the consumer revokes their permission).
This suggests that the days of relying on "implied" or opt-out
consent that gave business the power to use customer information
without their explicit permission will soon be over. With the
government emphasizing a "pro-consumer" approach, finalizing the
anti-spam regulations represents a long-overdue win for consumers as
Canada has become the last major developed economy to implement
TagsShareMonday December 16, 2013
The University of Toronto and the University of Western Ontario, the two
Ontario universities that were quick to sign a copyright collective
licence with Access Copyright before the conclusion of Bill C-11 and the
Supreme Court of Canada's fair dealing decisions, have announced
that starting next year they will no longer operate under a licence from the copyright
collective. The moves come after many other prominent Canadian
universities operated without an Access Copyright licence, relying
instead the millions of dollars being spent on site licences, open access
materials, fair dealing, and transactional licensing for specific works
that are otherwise unavailable or whose use would not constitute fair
The fair dealing aspect of the strategy has attracted considerable
criticism from Access Copyright and its allies, who implausibly argue
that despite multiple Supreme Court of Canada decisions and an expansion
of fair dealing by the Canadian government, that there is still much
uncertainty about its application. The reality is that a fair dealing consensus
has emerged in Canada within the education community that is relatively
conservative in scope. For example, the Canadian guidelines speak to
the use of 10 percent of a work as fair dealing. By comparison, a recent settlement in Israel between universities and a major publisher identifies 20 percent of a work as fair.
While Access Copyright argued immediately after its release that the 2012 Supreme Court decision left "copyright licensing in the
education sector alive and well", it was obvious that this
was just not the case. In fact, Access Copyright warned the Supreme Court that:
Read More ...
The appellants invite this Court to make broad, sweeping
declarations about copying in K-12 schools that would put at risk
Access Copyright's entire educational publishing repertoire, from
which 246 million pages are copied each year by K-12 schools.
TagsShareWednesday December 11, 2013
In other words, it readily acknowledged that its system of
educational licensing was on the line before the Supreme Court. Yet
as I chronicled
after the decision
, the Court rejected every major Access
Copyright argument. There was no uncertainty about what was at stake
- the collective itself made that clear and the Court had little
trouble in determining that the copying at issue was fair dealing.
Rather than adapt to the current environment (many Canadian
universities license Canadian publications through a U.S. collective
because it offers an easier method of transactional licensing),
Access Copyright and its allies now seem content to raise unfounded, plainly false,
and somewhat bizarre rhetoric:
- Access Copyright says
"fair dealing requires clarification." Yet the Supreme Court
just ruled on fair dealing and the government expanded fair
dealing despite Access Copyright urging it not to do so. At
committee hearings on Bill C-11, Access Copyright noted
how the Supreme Court has adopted a "large and liberal
interpretation" for fair dealing.
- The Canadian Educational Resources Council now argues
that fair dealing is limited to "spontaneous, situational uses"
even though there is no such limitation in either the law or
- The Association of Canadian Publishers claims
that "fair dealing is intended to facilitate transformative uses
of copied material, such as new research, criticism, and satire.
When copying is simply duplication for distribution, it is not
fair dealing". Not only is this not what the Supreme Court said,
but the Court's findings on fair dealing involved copying that
was duplication for distribution. Moreover, the Court has ruled
that fair dealing is a users' right, not one limited to
- The Writers' Union of Canada suggests
that the university policies encourage "the wholesale
cannibalization of books without permission or payment" despite
the fact that the fair dealing policies do not cover entire
books, but rather a limited percentage that is consistent with
the Supreme Court's ruling that fair dealing can cover an entire
- The Professional Writers Association of Canada claims
that the universities "have been persuaded by the most fanatical
ideologues in their midst that the recent reform of copyright
law in Canada gives them free rein to copy at will without any
regard for the realities of the marketplace." As noted above, no
one is claiming free rein to copy anything without limitation
and any copying is based on sound copyright principles developed
by Parliament and the Supreme Court of Canada.
Moving past the rhetoric and distortions of the law, the reality remains that educational
institutions spend millions on copyright works every year. The
decision to move away from Access Copyright is simply a matter of
dropping a licence that provides little value and instead relying on
a strategy that combines payments to authors and publishers through
site and transactional licensing with permitted uses through open
access and fair dealing. That approach is fair to all: payment to
authors where appropriate and compliance with the law consistent
with the rulings from the Supreme Court and legislative reforms from