My series of posts on the leak of the Trans Pacific Partnership intellectual property chapter has highlighted Canada's opposition to many U.S. proposals, U.S. demands
for Internet provider liability that could lead to subscriber
termination, content blocking, and ISP monitoring, as well as
anti-counterfeiting provisions that are inconsistent with Bill C-8.
This post discusses the section on protection for geographical
indications and explains how U.S. demands conflict with Canada has
already agreed to in the trade agreement with Europe (CETA).
Read More ...
TagsShareFriday November 15, 2013
As I discussed in a post on
CETA last month
, the Canada - EU deal contains some notable
new restrictions on the sale and marketing of cheese in Canada.
Under the umbrella of geographical indications, Canada has agreed to
new limitations on several well known cheeses including asiago,
feta, fontina, gorgonzola, and munster. Existing Canadian producers
can continue to use these names, but that's it - any future cheese
makers will need to qualify the title by using words such as
"imitation" or "style". This is a significant concession that
effectively gives rights to existing producers on what many
consumers would view as generic names.
The U.S. wants the TPP to take the opposite approach, starting with
a general provision stating that trademarks should be sufficient to
provide protection. Where parties do provide geographical indication
protection (Canada obviously does), the U.S. wants an opposition
system to object to them. Moreover, it wants to stop any country
from prohibiting third parties from using translated versions of
geographical indication (except for wines and spirits) or from using
a term that is evoked by the geographical indication. The U.S. also
wants the possibility that geographical terms may become customary
in common language (ie. feta).
Canada is opposed to all of these proposals (as are most other TPP
countries) and it seems unlikely that the U.S. will get its way on
all of them. Yet the draft text demonstrates the potential for
conflict, which could easily extend to many other areas of the TPP
that remain shrouded in secrecy.
The leak of the Trans Pacific Partnership intellectual property chapter confirms that the many concerns about the agreement were well-founded. My earlier posts highlighted Canada's opposition to many U.S. proposals and U.S. demands
for Internet provider liability that could lead to subscriber
termination, content blocking, and ISP monitoring. This post focuses on
some of the anti-counterfeiting requirements in the TPP. The
anti-counterfeiting issue is particularly relevant from a Canadian
perspective because the government has proposed significant new anti-counterfeiting measures in Bill C-8,
which is currently at second reading in the House of Commons and being
studied by the Industry Committee. If the U.S. border measures demands
are included in the TPP, Bill
C-8 would be wholly inadequate to meet Canada's new treaty obligations.
Read More ...
TagsShareFriday November 15, 2013
For example, the TPP would require customs officials have ex officio
power (ie. power without court oversight or even a formal complaint
from a rights holder) to seize in-transit shipments of suspected
counterfeit trademark or copyright goods. Bill C-8 currently
excludes in-transit shipments. Moreover, the U.S. wants to extend
counterfeit trademark goods to goods that are "confusingly similar",
a demand currently opposed by Canada and also not contained in the
The TPP would also create a framework where customs officials could
notify rights holders of seized goods, even where the rights holder
has not asked for assistance. This is inconsistent with Bill C-8,
which is premised on a system of a prior request from rights
holders. Beyond border measures, the TPP would require countries to
establish statutory damages for trademark infringement. Canada does
not currently have this form of damages, though there has been lobbying
by some groups to include trademark statutory damages in Bill
C-8. During my recent committee
appearance on C-8
, I argued that the bill should be delayed
until Canadian obligations become clearer. The leak of the TPP text
confirms that the government may be forced into further reforms if
the U.S. succeeds with its anti-counterfeiting demands.
The leak of the Trans Pacific Partnership intellectual property chapter
generated global coverage as full access to the proposed text provided a
wake-up call on U.S. demands and the clear opposition from many TPP
countries. My first post
highlighted Canada's opposition to many U.S. proposals, but nowhere is
that more evident than in the section on Internet service provider
liability. In fact, ISP liability in the TPP is shaping up to be a
battle between Canada and the U.S., with countries lining up either in
favour of a general notification obligation (Canada) or a
notice-and-takedown system with the prospect of terminating subscriber
Internet access and content blocking (U.S.).
Read More ...
TagsShareThursday November 14, 2013
The Canadian approach, which enjoys support from Chile, Brunei, New
Zealand, Malaysia, Vietnam, Singapore, and Mexico, establishes a
general obligation to limit liability for ISPs for infringements
that occur on their networks (the U.S. and Australia oppose this
approach, Japan and Peru are undecided). The Canadian proposal
includes more detailed descriptions of the limitations of liability,
an exclusion for services primarily for enabling infringement, and a
reminder that ISP liability is still subject to copyright
limitations and exceptions. Under the Canadian model, ISP limitation
of liability is conditioned on creating a notification process and
"legal incentives for ISPs to comply with these procedures or
remedies against ISPs that fail to comply."
The U.S. proposal, which enjoys support from Australia (and support
for some provisions from Singapore, New Zealand, and Peru) features
far more conditions for ISP limitation of liability that could lead
to subscriber service termination and content blocking (Canada,
Brunei, Vietnam, and Mexico oppose the approach). Under the U.S.
model, specific actions are required for specific limitations of
liability. For example, a limitation of liability for automated
caching is subject to four requirements, including "removing or
disabling access, on receipt of an effective notification of claimed
infringement, to cached material that has been removed or access to
which has been disabled at the originating site." Limitation of
liability for network storage or linking users to online sites are
also subject to compliance with notifications.
However, all forms of ISP limitations of liability are subject to
several additional conditions (which Malaysia and New Zealand
- adopting and reasonably implementing a policy that provides
for termination in appropriate circumstances of the accounts
of repeat infringers
- accommodating and not interfering with standard technical
measures accepted in the Party's territory that protect and
identify copyrighted material, that are developed through an
open, voluntary process by a broad consensus of interested
parties, that are available on reasonable and
nondiscriminatory terms, and that do not impose substantial
costs on service providers or substantial burdens on their
systems or networks.
In other words - subscriber termination and content blocking.
Moreover, ISPs could be required to monitor their networks and seek
out information on infringing activity if consistent with these
The U.S. approach also requires a privacy override. While Canadian
privacy law has established protections on disclosure of subscriber
information, the U.S. model would require:
Each Party shall establish an administrative or judicial
procedure enabling copyright owners who have given effective
notification of claimed infringement to obtain expeditiously from
a service provider information in its possession identifying the
On top of all this, the U.S. is seeking an annex to the chapter that
specifies the requirements for effective notices. They are supported
by Australia and Singapore. Opposition comes from Canada,
Chile, Malaysia, New Zealand, Vietnam, Brunei, Mexico, and Peru.
From a Canadian perspective, the U.S. demands would require an
overhaul of Canadian copyright law and potential changes to privacy
law. For many other TPP countries, the issue is creating a
clear divide, with the U.S. conditioning ISP safe harbours on
subscriber termination and content blocking, while the Canadian
model favours greater flexiblity in establishing systems that create
incentives to address alleged infringements online.
Wikileaks released an updated version of the secret Trans Pacific Partnership intellectual property chapter this morning (background on the TPP from my appearance
before the House of Commons Standing Committee on International Trade
earlier this year). The leaked text, which runs 95 pages in length and
is current to August 2013, provides a detailed look not only at the
chapter - it includes the full text - but also the specific positions
being taken by all negotiating countries.
From a Canadian perspective, there is good news and bad news. The good
news is that Canada is pushing back against many U.S. demands by
promoting provisions that are consistent with current Canadian law.
Canada is often joined by New Zealand, Malaysia, Mexico, Chile, Vietnam,
Peru, and Brunei Darussalam. Japan and Singapore are part of this same
group on many issues. Interestingly, Canada has also promoted
Canadian-specific solutions on many issues. The bad news is that the
U.S. - often joined by Australia - is demanding that Canada rollback its
recent copyright reform legislation with a long list of draconian
It is instructive to see how different the objectives of the U.S. are on
intellectual property when compared to virtually all other countries.
With the exception of the U.S., Japan, and Australia, all other TPP
countries have proposed an objectives article (Article QQ.A.2) that
references the need for balance, promotion of the public domain,
protection of public health, and measures to ensure that IP rights
themselves do not become barriers to trade. The opposition to these
objective by the U.S. and Japan (Australia has not taken a position)
speaks volumes about their goals for the TPP.
Read More ...
Canada is also part of a large group (which includes New Zealand,
Malaysia, Peru, Brunei, Vietnam, Chile, Japan, and Mexico) that
opposes a U.S. and Australian demand that all TPP countries ratify
ten other intellectual property treaties by the time the TPP takes
effect (Article QQ.A.6). Canada has ratified some, but not
all, of the listed treaties.
Canada has also proposed (together with New Zealand, Singapore,
Chile, and Malaysia) a principles article that would permit
provisions "to prevent the abuse of intellectual property rights by
rights holders or the resort to practices which unreasonably
restrain trade or adversely affect the international transfer of
technology." This principle is reflected in Article QQ.A.9,
which safeguards the right of countries to adopt measures to prevent
abuse of IP rights and anti-competitive practices from such abuse.
The U.S. and Japan oppose this article.
Chile, Vietnam and Peru have proposed an article (Article QQ.A.13)
focused on the public domain, including the development of public
databases that identify works in the public domain. Canada does not
appear to have taken a position on this article.
The majority of chapter focuses on reforms to virtually all aspects
of intellectual property including patents, copyright, trademarks,
and geographic indications. There are also detailed proposals for
Internet enforcement, including liability of Internet service
providers. These require careful study and I will examine them in
TagsShareWednesday November 13, 2013
The government's anti-counterfeiting legislation, which died over the
summer when the Conservatives hit the parliamentary reset button, is now
back on the legislative fast track. Industry Minister James Moore
quickly re-introduced the bill last month and speedily sent it to the
Industry Committee for review (I appeared before the committee last week).
That review has revealed that the numerous new border measures
envisioned by the bill, including seizure powers without court
oversight, fall short of the demands of intellectual property lobby
groups. Those groups intend to use the committee hearings to seek
further expansion of border seizures and to shift more enforcement costs
to the public.
My weekly technology law column (Toronto Star version, homepage version) notes that since virtually everyone is opposed to harmful counterfeiting -
particularly when fake goods create health and safety risks - it is
unsurprising that the bill appears to enjoy all-party support. The focal
point of the bill is that it grants customs officials broad new powers
without court oversight. Officials will be required to assess whether
goods entering or exiting the country infringe any copyright or
trademark rights. Should a customs official determine that there is
infringement, the goods may be seized and prevented from entering the
Read More ...
The bill features several safeguards designed to limit the potential
for wrongful seizures or targeting of individuals. For example, it
excludes both patent claims (which are very difficult to assess) and
in-transit shipments (which involves goods that do not originate in
Canada and are not destined to stay in Canada). Moreover, there is
an exception for the personal effects carried by individual
travellers as they cross the border.
While those are sensible limitations, the lobby groups are demanding
several significant changes. First, the groups want to vest even
more powers in the hands of customs officials, calling for reforms
that would allow for the destruction or forfeiture of goods without
court oversight. Moreover, the groups argue that under the proposed
system, "too much is asked of rights holders." As a result, they
want taxpayers to bear the burden of much of the costs associated
with private enforcement of their rights.
Second, the lobby groups are demanding new statutory damages for
trademark infringement. The inclusion of statutory damages would
mean that rights holders would not have prove any actual damages,
but rather could potentially sue for millions of dollars without
evidence of loss. In the U.S., statutory damages for trademark has
led to trademark trolls engaging in litigation designed primarily to
obtain costly settlements against small businesses that can
ill-afford to fight in court.
Third, lobby groups are seeking the removal of the exception for
in-transit shipments, arguing that customs officials should be
permitted to seize goods not destined to stay in Canada. Experience
with in-transit seizures in Europe reveals that generic
pharmaceuticals are often targeted. During 2008 and 2009, Doctors
Without Borders found at least 19 shipments of generic medicines
from India to other countries were impounded while in transit in
Europe. This included a Dutch seizure of AIDS drugs that was en
route from India to a Clinton Foundation project in Nigeria. In
2011, the Court of the European Justice ruled against in-transit
seizures on the grounds that there was no infringement in the EU.
Fourth, there has been discussion at the Industry Committee about
the possibility of amending the personal traveler exception. If the
exception were removed, it might open the door to escalated searches
of both physical luggage as well as electronic devices such as
iPods, smartphones, and personal computers.
The government's counterfeiting bill would benefit from some
amendments, but the current lobby group emphasis signals that there
may be escalating pressure to remove many of the balancing
provisions. Those changes could result in cost shifting enforcement
to the public and increasing the expenses borne by small businesses
that import goods from abroad.
TagsShareTuesday November 12, 2013
I appeared yesterday before the House of Commons Standing Committee on Industry, Science and Technology
for a hearing on Bill C-8, the anti-counterfeiting bill that has been
placed on the legislative fast-track by the government. The panel also
featured representatives from the Canadian Anti-Counterfeiting Network,
the Canadian Standards Association, and the Intellectual Property
Institute of Canada. The hearing was cut short by a vote in the House of
Commons, but there was still an opportunity for a ten minute opening
presentation and to address a few questions from the committee members.
My prepared remarks are posted below. Given time constraints and the
comments of the other panel members, there were some adjustments (I
omitted the first section on the scope of counterfeiting and noted that
fellow panel members proposed the precise amendments I was discussing).
Read More ...
Appearance before the House of Commons Standing Committee on
Industry, Science and Technology, November 6, 2013
Good afternoon. My name is Michael Geist. I am a law
professor at the University of Ottawa, where I hold the Canada
Research Chair in Internet and E-commerce Law. I have edited several
books on Canadian copyright and appeared many times before
committees on copyright and trade policy. I appear today in a
personal capacity representing only my own views.
I appreciate the opportunity to appear today to speak to you about
Bill C-8. While the panel may disagree on certain elements of the
legislation, I am sure that all agree that where harmful
counterfeiting occurs - particularly involving health and safety -
the law should provide all concerned with the legal tools necessary
to address the problem. Indeed, we should not forget that the
existing law in Canada is regularly used to conduct
anti-counterfeiting raids and seizures, that border officials work
with the RMCP and Health Canada on health and safety issues, and
that the courts have awarded increasingly significant penalties in
That said, context within a discussion on counterfeiting is
important. It is easy to point to the obvious health and safety
issues and conclude that any possible legal remedy should be adopted
in response. Yet it is important to recognize that the scope of the
problem remains the subject of considerable debate and that some
proposed solutions may have unintended consequences that are
themselves harmful and should be avoided. Moreover, given Minister
Moore’s insistence that the bill is about protecting intellectual
property on an international scale, the international context - the
Anti-Counterfeiting Trade Agreement and the proposed trade agreement
between the Canada and the EU - merits some discussion as well.
Given the need for context, I plan to focus on three issues in my
opening remarks. First, provide context on the scope of
counterfeiting based on reports and data we have available. Second,
highlight some potential unintended consequences in Bill C-8,
particularly those that could arise from some proposals for
amendment. Third, briefly discuss the international context of ACTA
and CETA. I should add that I will not discuss the myriad of
trademark reforms in the bill, but I think those are out-of-place in
a counterfeiting bill. If the intent was to introduce an
omnibus-style intellectual property bill, it should also deal with
live issues such as access for the blind which is the subject of a
new international treaty and reform to the Copyright Board of
1. The Scope of Counterfeiting
As I mentioned a moment ago, 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 common
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, 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 but some industry groups still do when
lobbying for anti-counterfeiting legislation. Last week, Public
Safety released an RFP for a study on the size of the Canadian
market for counterfeit product, a long overdue effort to obtain more
reliable data that might allow for a meaningful assessment of the
problem and potential solutions.
Beyond the estimates, some impartial studies on actual seizures
raise doubts about the scope of the problem. For example, the U.S.
Government Accountability Office found that of 287,000 randomly
inspected shipments from 2000 to 2005, counterfeiting violations
were only found in 0.06 percent - less than one tenth of one
percent. Moreover, the GAO noted that despite increases in
counterfeiting seizures, the value of those seizures in 2005
represented only 0.02 percent of the total value of imports of goods
in product categories that are likely to involve intellectual
property protection. That is obviously a far cry from the 3 - 4%
that is often used in counterfeiting estimates.
2. Potential Unintended Consequences of C-8
Let me start by saying that the exception for individual travelers,
the exclusion of patents and in-transit shipments, and the attempt
to avoid application to grey market goods are positive policy
choices designed to target the bad actors and to not allow border
seizures to raise consumer costs. That said, there are some real
concerns about potential unintended consequences. I’d like to
briefly highlight four.
First, as you know, the bill vests enormous power in the hands of
customs officials. 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. The
bill opens the door to detention of works 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.
While there have been claims that these powers are consistent with
international standards, the reality is that there are a number of
countries - including allies such as Australia and Mexico - that do
not have the ex-officio powers envisioned by this bill in their law.
Using the courts for oversight is still viewed as a workable,
legitimate approach to dealing with counterfeiting - this committee
heard on Monday how the CBSA works with the RCMP and Health Canada
on safety and security concerns. To vest this power in non-expert
customs officials could lead to unintended consequences.
The committee may hear from some groups that want the legislation to
go even further - including cost shifting enforcement to the public,
and ignoring the costs borne by small businesses that import goods
that could get caught up in the seizures. Moreover, some may
call for even more expansive powers for customs officials, including
destruction or forfeiture of goods without court oversight.
These proposals are enormously problematic and would alter any
attempt at balance in the bill by removing important safeguards,
shifting private enforcement costs to the public, and raising
consumer costs. Further, detention of goods can be used to
harm Canadian businesses who could find their goods detained by
competitors. The absence of a misuse provision in the bill is
particularly notable in this regard.
Second, the bill does include an exception for personal travelers.
However, the bill is oddly drafted by speaking of “works” rather
than “goods” - both ACTA and the TPP focus on physical goods - which
could also cover iPod and laptop searches. In fact, if the exception
were removed, this could lead to escalated searches of iPods,
smartphones, and other electronic devices.
Third, there are some groups that may argue for expanded penalties.
The bill already moves copyright and trademark into the world of
criminal provisions in a manner that extends far beyond conventional
IP law. Further, some may call for the inclusion of statutory
damages for trademark infringement. With respect to trademarks,
statutory damages are unnecessary. Rights holders frequently
cite the specific value of their goods and the harm associated with
counterfeiting. If these claims are accurate, demonstrating that
value for the purposes of damage awards should not be difficult.
Moreover, other countries have experienced problems with statutory
damages for trademarks. For example, Taiwan reformed its
trademark statutory damages provisions when courts began awarding
disproportionate awards. In the U.S., statutory damages for
trademark has led to trademark trolls engaging in litigation
designed primarily to obtain costly settlements against small
businesses that can ill-afford to fight in court.
Fourth, during debates over the prior Bill C-56, some opposition MPs
raised the prospect of also targeting in-transit shipments. The bill
wisely does not do this and such a reform would be a mistake. The
seizure of generic pharmaceuticals in transit would pose a threat to
international trade, development and public welfare. Experience with
such seizures in the European Union led in 2010 to India and Brazil
filing complaints with the World Trade Organization highlighting
several instances of consignments of generic medicines transiting
via the EU being detained because they were suspected of infringing
IP rights. For example, during 2008 and 2009, Doctors Without
Borders found at least 19 shipments of generic medicines from India
to other countries were impounded while in transit in Europe. In one
instance, German customs authorities wrongfully seized a drug
shipment of “Amoxicillin” on the suspicion that it infringed the
brand name “Amoxil” - the cargo was detained for four weeks while
further investigation took place, eventually revealing that there
was no trademark infringement. In another instance, the Dutch
customs authorities seized a shipment of an AIDS drug while it was
en route (via Europe) from India to a Clinton Foundation project in
In 2011, the Court of the European Justice ruled against in-transit
seizures on the grounds that there was no infringement in the EU. A
similar approach is appropriate here and attempts to extend C-8 to
in-transit shipments should be rejected.
3. International Context
Notwithstanding claims that this legislation is responding to
domestic concerns, much of the pressure comes from outside the
country. Ms. Sgro asked about the Anti-Counterfeiting Trade
Agreement in Monday. In fact, the United States has not yet ratified
ACTA. The only country to have ratified is Japan. With the vast
majority of signatories now having rejected ACTA - the entire
European Union along with Switzerland is out - there is some doubt
that ACTA will ever take effect. Even if it does, it now
stands as damaged goods and a far cry from a relevant international
standard. ACTA elicited an enormous public backlash and Canada would
do well to move on.
Perhaps more relevant is CETA, which apparently contains border
provisions consistent with Bill C-8. The problem is that the
government has not released the CETA text so there is no way of
knowing precisely what is required under that treaty and whether
there is room for changes to Bill C-8. The bill may be consistent
with CETA, but without the text we can’t know if alterations to the
bill might still fall within the treaty requirements.
There is also the possibility - some say likelihood - of border
measures provisions in the Trans Pacific Partnership, which is still
The net effect of the international pressures is that Canada would
do well to pause on this bill until the international treaties are
concluded and our obligations are better understood.
I’ll stop there and welcome your questions.
TagsShareThursday November 07, 2013
Statistics Canada released its bi-ennial Internet use survey last week
and while much of the immediate reaction focused on the continuing
growth of Internet use (due largely to increased usage by those aged 65
and older), my weekly technology law column (Toronto Star version, homepage version) argues the bigger story is the ongoing Canadian digital divide that
confirms the strong link between household income and Internet use.
Statscan reports that 83 per cent of Canadians use the Internet, yet a
closer examination of the data reveals a significant gap that is closely
correlated to income. Moreover, the data also shows that Canada's high
wireless prices now play a role in the digital divide, with only a
quarter of lower-income Canadians using Internet wireless services.
Read More ...
Internet use among the richer half of the country is actually over
90 per cent with the top quartile of household income at 94.5 per
cent and the second quartile at 90.2 per cent. Internet use among
the bottom quartile of Canadians stands at only 62.5 per cent (the
third quartile is 77.8 per cent).
The digital divide remains consistent across all demographics with
wealthier households far likelier to use the Internet than poorer
ones regardless of their age. For example, Statscan reports that
47.5 per cent of Canadians aged 65 and over use the Internet (up
from 40.2 in 2010), the biggest jump of any age group. However,
there is a major divide in Internet use based on household income.
While 66.7 per cent of households over the age of 65 in the top half
of income use the Internet, that number drops to only 28.5 per cent
for the poorest quartile of households.
The ongoing battle over the competitiveness and pricing of Canadian
wireless services also plays an increasingly important role in
Internet use. Internet wireless use is easily the fastest
growing way for Canadians to access the Internet - 48.6 per cent of
Canadians used Internet wireless services in 2012, nearly double the
2010 rate of 26.2 per cent.
Wireless Internet use features the largest difference by age of any
type of access as 84.2 per cent of Canadians between the ages of 16
to 24 have used Internet wireless services, but that drops to 8.7
percent of Canadians aged 65 and over.
Household income is major factor for wireless Internet use. While
67.8 per cent of all Canadians in the top income quartile have used
Internet wireless services, only 26.4 per cent of the bottom income
quartile have done so.
The digital divide in wireless Internet use remains consistent
across different age groups. The 16 to 24 demographic are the
heaviest users of wireless Internet services, but the gap between
the rich and poor remains: 88.3 per cent of the top quartile use
wireless Internet services, but that declines to 26.4 per cent for
the poorest quartile. There is also a major gap among older
Canadians with 27.3 per cent of the top income quartile of Canadians
aged 65 and over using wireless Internet services compared to only
2.5 per cent of the bottom quartile.
Given the digital divide, it is unsurprising that poorer Canadians
rely more heavily on public access points such as libraries to use
the Internet. The biggest user of library Internet access are
Canadians aged 16 to 24, where 21.5 per cent used Internet library
access in 2012 (the overall figure for Canadians was 9.7 per cent).
When broken down by income, the number increases to 26.8 per cent
for the poorest Canadians in that demographic, compared to 16.3 per
cent for the wealthiest in that group.
If the government is serious about ensuring that all Canadians can
benefit from the Internet, the Statscan data confirms that it must
focus on finding solutions to provide affordable access to lower
income Canadians. This may include fostering a more competitive
wireless marketplace, working with Internet providers to develop
programs targeting lower income earners, and rethinking the decision
to cancel community access programs that remain valuable to many
TagsShareTuesday November 05, 2013
The Federal Court of Canada has ordered
Bell TV to pay $20,000 in damages (plus an additional $1,000 in legal
fees) for violating the privacy rights of a Nova Scotia satellite tv
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 customer. The customer asked for an
apology and to remove the credit check from his record. Unsatisfied with
the response, he filed a complaint with the Privacy Commissioner of
Canada (which issued a well-founded finding) and later an action at the
When Bell did not bother to respond, the federal court found that the
company did not offer any compensation or implement the privacy
commissioner's recommendations. Accordingly, the court awarded
$10,000 in damages and $10,000 in exemplary damages "for Bell's conduct
at the time of breach of the privacy rights and thereafter." The court
added an additional $1,000 for disbursements and other costs.TagsShareFriday November 01, 2013
The Canadian government released a technical summary
of the Canada - EU trade agreement (CETA) yesterday, which provides
further details on the draft agreement (tabling a summary of the treaty
is a strange exercise and the government needs to release the full
text). Within the summary, there are some further details on the
intellectual property issues that were not highlighted in the initial
First, while the emphasis on cheese and the dairy industry has focused
on increasing the amount of European cheese that can be sold in Canada,
the agreement also contains some notable new restrictions on the sale
and marketing of cheese in Canada more generally. Under the umbrella of
geographic indications protections, Canada has agreed to new limitations on several
well known cheeses
including asiago, feta, fontina, gorgonzola, and munster. Existing
Canadian producers can continue to use these names, but that's it - any
future cheese makers will need to qualify the title by using words such
as "imitation" or "style". This is a significant concession that
effectively gives rights to existing producers on what many consumers
would view as generic names.
Read More ...
TagsShareWednesday October 30, 2013
Second, the government has effectively agreed to pass
anti-counterfeiting legislation, which was reintroduced as Bill
(formerly Bill C-56) on Monday. The bill is on the
fast-track as it received first and second reading and was
immediately referred to committee. The committee will no doubt hear
from many witnesses, but the government appears to have already
agreed to pass the legislation largely unchanged. According to the
of the Canada - EU trade agreement (CETA), the treaty:
Includes provisions on civil remedies and border enforcement
in line with Canada’s existing regime and federal Bill C-56,
Combating Counterfeit Products Act
Third, the government may have committed to ratifying several other
IP treaties, though it is unclear on the level of commitment. The
summary states that:
CETA specifically mentions the Singapore Treaty on the Law of
Trademarks, the Protocol Related to the Madrid Agreement
Concerning the International Registration of Marks, and the Geneva
Act of the Hague Agreement Concerning the International
Registration of Industrial Designs
The summary does not state whether Canada is committed to enacting
these treaties, but they were part of a policy
earlier this year when the Standing
Committee on Industry recommended their ratification despite the
fact that no one actually raised the issue before the committee.
Fourth, the technical summary confirms that CETA will not require
any Canadian copyright law changes on key issues, including
copyright term and ISP liability. Those same issues may be pressure
points on the current Trans Pacific Partnership negotiations.
Fifth, the summary provides the details on pharmaceutical patent
reforms which were consistent with earlier releases (now with a
further government spin). These include rights of appeal
reforms and patent term restoration for up to two years.
Last week, Bell announced plans to implement new
consumer monitoring and profiling practices that would greatly
expand how it uses the information it collects on millions of
subscribers. The planned scope of Bell's profiling is unprecedented
in Canada, reflecting the power of a vertically-integrated media
giant to effortlessly track their customers' location, media habits,
search activity, website interests, and application usage.
My weekly technology law column (Toronto
Star version, homepage version) notes the Bell plan generated
a significant public backlash with the Privacy Commissioner of
Canada launching an immediate investigation. Yet the company
steadfastly defended its plans, saying that users are supportive of
the new policy and maintaining that it is fully compliant with
Read More ...
TagsShareTuesday October 29, 2013
Given that many of its customers purchase bundled Internet and
wireless services, the magnitude of the profiling extends to
virtually all media and communications activity. Bell acknowledges
that it will be tracking seemingly everything about their customers:
which websites they visit, what search terms they enter, what
television shows they watch, what applications they use, and what
phone calls they make. Moreover, all of that data will be correlated
with additional data points such as location, age, gender, and even
bill payment practices.
Bell says it intends to use the data in several ways. First, it
will begin to use targeted advertising to its customers by using its
detailed consumer profile. The default for the company is that all
consumers will be profiled and targeted. If consumers don't want to
receive these targeted ads, Bell will force them to opt-out. Second,
Bell says it will aggregate its data to sell to other businesses and
marketing companies so that they can use the Bell network usage for
their own purposes.
Bell insists that its monitoring and profiling plans are legal, claiming
that it followed "every guideline" released by the Privacy
Commissioner of Canada. However, the upcoming investigation is
likely to focus on whether its use of an opt-out system meets the
Last year, the Privacy Commissioner released online
behavioural advertising guidelines
that permit the use of an
opt-out approach in some circumstances. The guidelines may not
govern here, however, since they explicitly do not apply to
advertising in a mobile context.
In fact, the guidelines also emphasize that opt-outs can only be
used if the information is non-sensitive. Given the breadth of data
- which includes locational information, payment records, and
profiles on interests and media activities - it is hard to see how
it can be fairly characterized as non-sensitive. Rather, to ensure
compliance with the law, Bell should be adopting an opt-in model,
where its customers are only subject to monitoring and profiling if
they proactively make that choice.
The legal concerns with the Bell profiling plan are not limited to
the private sector privacy law. The Canadian Radio-television and
Telecommunications Commission's policy on Internet traffic
management states that Internet providers are not permitted to use
personal information collected for managing their networks for other
purposes. If Bell is obtaining some of the profiling information
through the deep-packet inspection of customer Internet use, the
plan to use the information for profiling purposes would appear to
violate the CRTC policy.
Not only does the Bell profiling plan raise privacy law concerns,
but customers are rightly concerned that their profile may be
disclosed to law enforcement without a court order. The law
currently permits disclosures as part of a law enforcement
investigation without court oversight (though an ISP can refuse the
disclosure if there is no warrant). In the past, Bell has not
committed to requiring law enforcement to obtain a court order
before it discloses information.
Online behavioral advertising may be increasingly common, yet the
Bell profiling and monitoring plan extends far beyond what virtually
any other company could collect. That may prove appealing to
advertisers, but millions of Bell customers may oppose efforts to
extensively track their location, online activities, payment
practices, and media habits.