The government is slated to bring Bill
C-11, the copyright reform bill, into effect next week without
the "notice-and-notice" rules for Internet providers. The
revelations come in a Privy
Council document that provides notification on when the bill
will come into force. It is expected that the order bringing the
bill into effect will be published
on November 7, 2012. The majority of the bill will take effect
on that date, including fair dealing reform, new consumer
exceptions, caps on statutory damages for non-commercial
infringement, the user generated content provision, and the digital
lock rules. There are two notable exceptions, however.
First, the Internet service provider "notice-and-notice" rules will
not take effect. The implementation has been apparently been the
subject of fierce behind-the-scenes lobbying over issues such as the
fees for processing notices and the retention of subscriber
information. The public has not been included in these discussions
and more open policy process is needed in developing the
notice-and-notice regulations.
Second, several sections related to the WIPO Internet Treaties will
also be delayed until those treaties come into force for Canada.
There are lingering
questions over whether Canadian law is fully compliant with
the WIPO Internet treaties, particularly with respect to the private
copying levy. Moreover, Canadian
policy now requires the government to provide the House of
Commons with at least 21-sitting days for review of a treaty before
taking legal steps to bring it into force. The tabling of the treaty
must include an explanatory memorandum. This suggests that these
provisions may be delayed and that the House of Commons may have
some further debate on the WIPO Internet treaties - perhaps
including why the government went far beyond treaty requirements -
whenever the government does pursue bringing the treaties into
force.
c-11, copyright, notice-and-notice, wipo Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday October 31, 2012 |
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Jean-Pierre Blais, the CRTC Chair, delivered a major
address yesterday in which he sketched out his vision of the
Commission in 2017. He envisions a CRTC that is trusted by
Canadians a defender of their interests and that places Canadians at
the centre of policy making. Blais acknowledged public skepticism
about the CRTC and pledged "to earn their trust, every day, in every
action and in every decision."
Blais provided a vision that hits on many issues that should form
part of Canada's long missing digital economy strategy. CRTC
activity includes:
- the creation of a Chief Consumer Officer to ensure the CRTC
"examine all the issues before us through a consumer-focused
lens."
- the creation of wireless code of conduct
- ensuring Canadians have maximum choice of providers and
platforms
- transparency in costing data of wholesale services
- accessibility for all Canadians
- broadband availability of downloads of 5 Mbps and uploads for
1 Mbps for all Canadians by 2015
- enforcing do-not-call and anti-spam legislation
- a broad definition of creators to include anyone that creates,
distributes or promotes content
- protection against cellphone theft
Read More ...
On top of this list, Blais reiterated the importance of consumer
choice for television packages, stating:
In our decision, we noted that consumers increasingly expect to
be in control of what they watch. It makes sense that consumers
and the distributors who serve them should have more flexibility
in packaging choices. While we acknowledged the value of
predictable revenues to the programming services, we decided that
the days of guaranteed wholesale rates are over. Programming
services cannot expect to remain completely insulated from the
growing demand for greater choice by Canadians.
Blais added that the CRTC "won't hesitate to intervene when there's
market failure or a need to protect Canadians" and made it clear
that he welcomes greater public participation in the policy process:
We also have to ensure that Canadians become more involved in our
decision-making process.
A few weeks ago I appeared before a Parliamentary committee.
I told them that we cannot serve the public interest unless the
public takes part in our work. We're going to be more welcoming in
our public proceedings and public hearings.
I don't think our proceedings should be attended only by
people who are paid to be there in their official capacity. Let's
level the playing field. Next month we'll be holding a licence
renewal hearing for CBC/Radio-Canada, and we've offered evening
sessions to make it easier for Canadians to come and share their
views. The sessions will be set up in a less formal way in order
to encourage a more open dialogue.
At those hearings, we'll also use audio-visual technologies
to allow people to take part from other locations, including
official language minority communities. By the way, these minority
communities deserve to get the best possible programming services
in their own language. That is a matter of citizenship. We
continue to engage the public in online consultations on our
website. This will facilitate a broader nationwide discussion. It
enriches our public record and helps us make more informed
decisions.
While there remain skeptics about the CRTC shift, it is hard to see
what else the Commission could say to convince the public of a
change in perspective and approach. Blais has set out an
ambitious agenda for the coming five years with the goal of
reshaping the public view of the CRTC and its role in crafting
communication policy.
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The Canadian Association of Chiefs of Police renewed
its call for Internet surveillance legislation on Friday,
urging the government to move forward with Bill C-30. The CACP
release included a new video
and backgrounder.
Law enforcement officials now admit
that parts of the bill require amendment, yet as David Fraser points
out in this detailed
post, the reality is that "lawful access" is irretrievably
broken (I've posted in
the past on the many changes that are needed to restore
balance to Bill C-30). As Fraser argues with respect to mandatory
disclosure of personal information:
To put it very simply, if the police cannot convince a
judge that the connection should be made, they should not be able
to obtain it. If you can’t convince a judge that it will lead to
evidence of a crime, the cops should go back to the drawing board.
While the CACP insists that "Canadians need to understand what
lawful access is truly about", it unfortunately resorts to headline
grabbing claims that have little to do with the bill. Much
like the government's initial focus on child pornography, the CACP
jumps on the recent focus on cyber-bullying, stating:
Read More ...
"Criminal bullying is extremely concerning to all Canadians,
especially the parents of young children, and Bill C-30 also
provides new legislation to help police intervene and investigate
cyber bullying in their early stages to prevent needless tragedy.
The Bill makes it an offence to use telecommunications, including
social media and the Internet, to injure, alarm, and harass
others."
It is striking that the government never mentioned cyber-bullying
when it introduced Bill C-30 - not in the press
release, the backgrounder,
or the myths
document. That is because the bill has little to do with
cyber-bullying. The attempt to raise it as a justification for
Internet surveillance demonstrates yet again how proponents of the
bill have failed to muster compelling evidence to support the bill
and instead rely on headline-grabbing claims that have minimal
connection to the actual proposed
legislation.
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Earlier this month, the Canadian Radio-television and
Telecommunications Commission invited the public to help create a national
code of conduct for wireless companies such as Bell, Rogers,
and Telus. The consultation is expected to generate widespread
interest, providing frustrated consumers with an outlet for
grievances on lengthy contracts, problematic terms and conditions,
exorbitant roaming costs, or onerous cancellation fees.
My weekly technology law column (Toronto
Star version, homepage
version) notes the decision to embark on a national,
enforceable code of conduct for wireless services supported by the
wireless carriers represents a dramatic policy shift that was
scarcely imaginable only a few years. Indeed, when then-Industry
Minister Maxime Bernier pushed through a policy direction to the
CRTC in 2006 aimed at limiting regulation by calling for "greater
reliance on market forces", consumer-focused regulations were viewed
as an impossibility. Consistent with the market-led approach, the
Canadian Wireless Telecommunications Association introduced a
voluntary code of conduct in 2009 with no expectation of government
regulation.
The move toward new regulations provides a valuable lesson on the
role that the provinces can play to jumpstart otherwise stagnating
issues. In the case of wireless services, the introduction of
provincial consumer protections geared specifically toward the
wireless sector ultimately encouraged the carriers to drop their
opposition to new regulation as they recognized that a uniform
federal policy was preferable to the emerging piecemeal provincial
framework.
Read More ...
The provincial shift started in the province of Quebec, which
enacted new consumer protections in 2010. Those protections included
safeguards against pricey termination fees, prohibitions against
unilaterally changing terms of service, and greater disclosures
about warranties. The wireless carriers unsurprisingly opposed the
new rules, claiming they would result in higher consumer costs and
delayed access to new smartphones and other devices.
Those claims proved unfounded and the Quebec initiative was quickly
followed by similar developments in Manitoba and Ontario. In
Manitoba, a consultation on new consumer protections was roundly
criticized by the Canadian Wireless Telecommunications
Association, which said "the rationale for provincial intervention
in the telecommunications sector is not compelling, and that at the
end of the day, consumers are better served by competition than by
regulation."
Interestingly, the CWTA submission revealed as an emerging divide
within the wireless industry. Mobilicity, one of the new wireless
providers, publicly
chastised its own association with a release stating that "we
are exceptionally disappointed with the CWTA's lack of foresight in
continuing to act only in the interests of the Big Three wireless
oligopoly. As a members of the CWTA, we repeatedly voiced our
opposition to its submission to no avail."
Months later, the momentum for wireless consumer protection moved to
Ontario, where Ontario MPP David Orazietti had been waging
a campaign for safeguards against high cancellation fees,
expiring pre-paid cards, incomprehensible contracts, and
carrier-locked phones. The government supported an Orazietti private
members bill, over the objection of the industry, which maintained
"we don't think legislation like this is needed to satisfy customers
and meet their demands."
With Nova Scotia and Alberta emerging as the next provinces to
develop enforceable, provincial-based wireless consumer protection
laws, earlier this year the industry admitted that the provincial
regulatory approach was worse than a single enforceable code. It
therefore reversed its position and asked the CRTC in March to
establish a national code of conduct.
The new national code will come from a new CRTC, however. Since the
appointment of chair Jean-Pierre Blais, the Commission has gone out
of its way to prioritize consumer concerns. Assuming the public
rallies behind the consultation, the process is likely to place the
carriers on the defensive against a litany of consumer complaints
with a resulting code that provides consumers with new legal rights
and a regulator prepared to enforce them.
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Last week's Canadian Radio-television and Telecommunications
decision to reject the proposed Bell - Astral merger surprised most
observers, as few predicted with much confidence that the deal would
be flatly rejected. There was good reason to doubt such an outcome,
given that the CRTC review of the merger transactions has
historically focused on the "tangible benefits" package that often
provide millions in funding for new Canadian television and radio
productions.
The result was largely regulatory theatre. The purchaser would
typically unveil a benefits package featuring self-interested
proposals, often amend those plans at the CRTC hearing to
demonstrate it was sensitive to criticisms from various groups, and
the CRTC would proceed to further tweak the package to show it was
not ready to rubber stamp the transaction.
My extra Toronto Star column (Toronto
Star version, homepage
version) notes the process generally served the companies and
the tangible benefits recipients well. The merging companies were
reasonably assured of getting their deal approved and the tangible
benefits recipients received hundreds of millions in funding with
few strings attached.
The problem was that the public was missing
from this process. Tough policy issues with a direct impact on the
public were put off for another day as the public interest was
supposedly served by trickle down benefits generated by market
efficiencies or the creation of new Canadian programming.
Read More ...
The most important aspect of last week's decision is that the new
CRTC - make no mistake, this is a new CRTC with expectations from
the government that it adopt a pro-consumer approach - will put the
public and the public interest at the heart of the review
process. CRTC Chair Jean-Pierre Blais made that clear during
the Bell - Astral hearing and he reiterated it on Thursday, telling
a press conference that "it is my intent to put Canadians back at
the centre of their communications system."
The change in approach is obvious when comparing the Bell - Astral
decision with the Bell purchase of CTVglobemedia only two years
ago. In the Bell - CTVglobemedia deal, the words "public
interest" appear only four times, each with reference to public
interest groups and their participation in the regulatory process.
The analysis of the transaction was based largely on the tangible
benefits package, which supposedly served as a proxy for the public
interest.
In the Bell - Astral decision, the Commission states clearly that
the tangible benefits are only part of the analysis, repeatedly
emphasizing "the applicant's burden to prove that the transaction is
in the public interest extends beyond the tangible benefits
requirement." This represents an enormous change in the review
process, providing consumer and public interest groups with far more
power since their submissions will now play a crucial evidentiary
role in assessing the public interest effect of the transaction.
The change in approach should also have a major impact on creator
groups that were the prime benefits package beneficiaries. Those
groups were often ready to trade the short-term gains from the
packages for the long-term pain of a converged market that would
suffer from reduced competition that hurt both consumers and
creators. With the tangible benefits package now only part of the
analysis, the influence of creator groups on the review will be
reduced as they share the spotlight with consumer and public
interest perspectives.
Bell issued a strongly worded release indicating it was shocked and
appalled at the decision, yet the real surprise is that the CRTC
used the powers it has always had to go beyond a public interest
analysis based chiefly on the size of the tangible benefits cheque.
This approach has been building for several months. From the
appointment of a consumer chief to Blais raising consumer
interventions directly during the Bell-Astral hearing, the CRTC is
leaving no doubt about the prioritization of consumer concerns. Its
three-year priorities document placed consumer access as the
top priority, dropping the prior emphasis on balance. In four
months, Blais has transformed the CRTC into a pro-consumer advocate,
creating the kind of regulatory agency that few thought imaginable.
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Earlier today, the CRTC rejected
Bell's proposed acquisition of Astral. The quick, unanimous decision
- the hearings wrapped up just over a month ago - leaves no doubt
about CRTC chair Jean Pierre Blais' top priority. Simply put,
the public (whether as the public interest or as consumers) comes
first. This is not a decision many expected. I wrote several
pieces
on the merger, but thought
that the Competition Bureau was a far more difficult regulatory
hurdle for the deal.
The CRTC identified multiple problems with the Bell bid (radio,
tangible benefits, lack of evidence that bigger is better online),
but the conclusion says it all:
The Commission finds that BCE has not discharged its burden and
demonstrated that, on balance, this transaction is in the public
interest. The benefits proposed would advantage BCE and its
services, but the Commission is not persuaded that the transaction
would provide significant and unequivocal benefits to the Canadian
broadcasting system and to Canadians sufficient to outweigh the
concerns described above.
While demonstrating that the transaction is in the public interest
is always the language used in these proceedings, the CRTC has in
the past focused on the tangible benefits package (ie. the
multi-million dollar payments to creator groups) as the primary proxy for
public interest. No longer. The CRTC's focus today is unequivocally
on the broader public interest with consumer impact the leading
concern.
Read More ...
This approach has been building for several months. From the
appointment of a consumer chief to Blais raising consumer
interventions directly during the Bell-Astral hearing to the
creation of a new enforceable wireless code of conduct, the CRTC is
leaving no doubt about the prioritization of consumers. Its three
year priorities document placed consumer
access as the top priority, dropping the prior emphasis on
balance. Moreover, the decision to kill LPIF over the objections of
creator groups sent another signal that the CRTC was focused
intently on consumers and the public interest.
In four months, Blais has transformed the CRTC into a pro-consumer
advocate, creating the kind of regulatory agency that until recently
was scarcely imaginable. The change is long overdue and credit must
go to the new chair and to the government, which has presumably
provided the mandate for real change in Canadian telecom and
broadcast regulation.
astral, bell, crtc Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareThursday October 18, 2012 |
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The Canada - EU Trade Agreement has been the subject of conflicting
reports on the inclusion of ACTA provisions, but there has
been no doubt about the ongoing dispute over the agreement's patent
rules. Given the EU demands for significant patent reforms, the
issue has been set aside with the ministers expected to address it
when they meet in November.
For months, big pharmaceutical companies (known as Rx&D) and
civil society/the generic pharmaceutical industry have been battling
over the issue. Each has released public opinion surveys that
purport to demonstrate support for their position (Rx&D,
civil society).
More important has been a study
that concluded that the proposed reforms could add billions to
annual Canadian health care costs along with reports
that show that the large pharmaceutical companies failed to meet
research and development commitments the last time the Canadian
government acquiesced to patent reform demands.
While Rx&D sought to downplay those studies (as did the
government, which described these concerns as a myth), it now faces
an internal
government study conducted by Industry Canada and Health
Canada that placed the costs of CETA patent reform as high as $2
billion per year. The $2 billion cost would significantly decrease
the government's claims of likely economic gains from CETA and
heighten provincial opposition, since the costs will be offloaded to
provincial health care budgets.
Read More ...
Having spent years claiming the CETA patent reforms would create
economic benefits for Canada, Rx&D now says costs associated
with the reforms are too difficult to predict. Responding to the
internal government study, Rx&D says:
"The notion of trying to use retroactive thinking on an industry
that's going through huge change and offering more and more value
and hope to our health care system and try to come up with a cost
to our system - without even thinking of the value of it - is
rather difficult to do. I think (it) is quite dangerous to base
any public policy on it."
The reality is that Rx&D has undoubtedly analyzed the economic
impact of the potential patent reforms and expects to generate
hundreds of millions of dollars in additional revenues. The math
isn't that complicated as the extension in patent term will keep
generic alternatives off the market for years. The Rx&D
companies know precisely how much revenue their patent drugs
generate and the expected revenue decrease once generics enter the
market. The government's own analysis now says the patent reforms
would cost billions. It must reject European demands with the bet
that there is enough remaining value in CETA for both sides to reach
agreement without creating a new multi-billion dollar burden on the
Canadian health care system.
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The Canada - EU Trade Agreement negotiations continue this week in
Brussels with both parties hoping to wrap up many outstanding
issues. According to information provided by Canadian officials at a
briefing earlier this month, the plan is to narrow the areas of disagreement
to no more than ten issues, with ministers meeting in Europe in
November to try to forge an agreement on the contentious areas.
While patent issues will clearly be part of the November discussion,
Canadian officials advised that the copyright chapter was largely
concluded. In fact, when I asked directly whether the text would
require changes to current Canadian copyright law, the response was
that it would not.
Notwithstanding those reassurances, Canadian officials acknowledged
the border measures issues were still unresolved. Moreover, days
later a European briefing offered a somewhat different take on the
copyright provisions. La Quadrature du Net, a leading European NGO,
reports
that the European Commission confirmed that the controversial
criminal ACTA provisions were still included in the CETA draft.
The reports have sparked a wave of new concern (see here,
here, here,
here,
and here)
with suggestions that ACTA is "back from the dead in Europe."
Read More ...
The public backlash mirrors similar
concerns this summer when reports
first emerged that CETA contained many ACTA-like provisions. The
European Commission denied
the reports, maintaining that the text had changed as a result
of the European Parliament's defeat of ACTA in July 2012, yet it now
seems probable that ACTA provisions are part of CETA.
Reconciling the conflicting reports is possible, given that Canadian
officials stated that no Copyright Act provisions would require
change as a result of CETA. The inclusion of border measures and
criminal provisions could require other legislative changes,
resulting in a deceptive (albeit accurate) response. Indeed,
Canadian officials said
in August that the criminal ACTA provisions were still alive. The
uncertainty and public concern raises the prospect of CETA facing
serious opposition within Europe due to the copyright provisions.
For example, the Dutch government has said
it will not sign CETA if it includes ACTA provisions. While the
patent issues are a major Canadian issue, copyright could emerge as
a big problem for the agreement in Europe should ACTA provisions
resurface within CETA.
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The Internet governance world gathers
in Toronto this week as the Internet Corporation for Assigned
Names and Numbers (ICANN), the California-based non-profit
corporation charged with the principal responsibility for
maintaining the Internet's domain name system, holds one of its
meetings in Canada for only the third time. My weekly technology law
column (Toronto
Star version, homepage
version) notes the Toronto ICANN meeting comes at a
particularly tumultuous time for the organization with mounting
criticism over its process for creating new domain name extensions
that could reshape the Internet.
After years of debate and discussion, ICANN last year unveiled a
policy that opened the door to hundreds of new domain name
extensions. While most Internet users are accustomed to the current
generic (dot-com, dot-net, and dot-org) and country-code (dot-ca in
Canada) extensions, ICANN's plans will radically change the domain
name landscape by creating hundreds of new extensions linked to
brand names, geographic regions, and even generic words.
Read More ...
The domain name extension allocation process began with an open
process that attracted nearly 2,000 applications for new domain name
extensions. Several Canadian organizations jumped at the
chance for new extensions, including Rogers Communications (which
applied for dot-rogers, dot-fido, and dot-chatr) and the Canadian
Real Estate Association (dot-mls).
Once the applications were published, the next stage of the process
invited comments on the proposals. The 105-day comment period
generated more than 10,000 responses, with many applications facing
considerable criticism.
Targets included even the most innocuous proposals. For example,
Johnson & Johnson, the manufacturer of well-known baby products
including baby powder and bath oil, applied for a dot-baby domain
name extension. The Saudi Arabian government responded
by warning that "many individuals and societies may find this string
offensive on religious and/or cultural grounds." It added that
there is a risk that the domain extension could be used for
pornography, much like dot-xxx domains.
Many other proposals attracted demands for heightened regulation of
domain name registrations. The movie and music industry responded
to the proposed creation of a dot-music domain name extension by
calling for "enhanced security measures". These include the ability
to reject potential registrants and requirements for detailed
personal information on registration that would be made widely
accessible. The groups justify the need for these measures on the
basis that new extensions focused on the content industries have
"the exceptional potential to cause harm to consumers."
These complaints may border on the bizarre, but the biggest outcry
has arisen over proposals from Internet giants Amazon and Google to
register hundreds of generic words, such as dot-book and dot-blog.
While few have a problem with the creation of these new generic
extensions, Amazon and Google surprised the Internet community by
proposing to keep the domains private with no public registrations.
Private domain name extensions were expected - many popular brand
names submitted applications to extend their trademarks to new
domain name extensions without plans to offer the public access -
but the use of generic terms for private purposes has rubbed many
people the wrong way as there is a sense of a virtual land grab.
With criticism of these proposals mounting, ICANN finds itself
sandwiched between unhappy governments, lobby groups, registrars,
consumer associations, and Internet users. If the organization caves
to the pressure, its legitimacy as a community-based consensus
driven body will be damaged. On the other hand, doing nothing runs
the risk of lawsuits and criticism that a decade-long policy process
has failed. As ICANN meets in Toronto, addressing the new domain
name extension issue will have significant implications not only for
the Internet, but for the organization itself.
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The Ontario Public School Board Association last week advised school
boards across the province that they should prepare to stop using
the Access Copyright licence effective next year. The advisory
indicates that the Counsel of Ministers of Education, Copyright,
which represents education ministers across the country, has
received a legal opinion that confirms that K-12 schools no longer
require the Access Copyright licence since they can rely on fair
dealing for the small percentage of copying in schools that is
unlicensed or copied without permission. A 2005
study of copying in Canadian K-12 schools conducted for Access
Copyright found that 88% of copying of copyright works already had
the necessary permissions without the need for an additional
licence. The Access Copyright portion covered as little as 6%
of the total copying and given the recent Supreme Court of Canada
decisions, the schools believe that this copying is covered by fair
dealing.
The advisory to the school boards includes the following (the fair
dealing guidelines, which are very
similar to the fair dealing policy adopted by the ACCC, can be
found
here):
Read More ...
The CMEC Copyright Consortium has received a legal opinion
stating that any copying of short excerpts by teachers for the use
of their students now qualifies as fair dealing and does not
require compensation through the current certified Access
Copyright Tariff. This legal opinion further states that
Ministries and school boards no longer require the current
certified Access Copyright tariff as most copying by teachers will
qualify as "fair dealing". The legal opinion states that
Ministries and school boards have an obligation to inform staff
and students of copying parameters that qualify for fair dealing.
Therefore, Fair Dealing Guidelines have been developed by
CMEC's legal counsel to provide advice on the legal definition of
"short excerpts" and set parameters for the types of copying that
qualify as fair dealing in an educational setting.
The Fair Dealing Guidelines describe a "safe harbour", not
absolute limits. Copying or communicating a
copyright-protected work within the prescribed limits will,
according to the advice of legal counsel, almost certainly be
fair. Copying beyond those limits may or may not be fair.
An earlier Supreme Court of Canada decision regarding
copyright and fair dealing held that adopting institutional
guidelines on fair dealing that provide safeguards to copyright
owners is an important element in establishing whether copies are
"fair". Therefore, the Fair Dealing Guidelines also set out
safeguards for copyright owners that will help school board staff
deal fairly with copyright protected material. A copy of the Fair
Dealing Guidelines is attached.
It is important that school boards implement these Fair
Dealing Guidelines in order to claim the full benefit of fair
dealing. Therefore, these Guidelines must be incorporated
into school board policies and communicated to all schools prior
to December 31 2012 in order for a school board to ensure that it
has fulfilled its obligations and can opt out of paying the
current certified Access Copyright Tariff. The Ontario
Ministry of Education will begin the process to have these
guidelines officially incorporated into a PPM. However, as
the Ministry's PPM will take some time to be developed, and member
boards need to have policies updated and shared with schools by
December 31 2012, OPSBA is sharing the guidelines now.
With K-12 schools (via CMEC) and the Association of Canadian
Community Colleges both concluding that the Access Copyright licence
is no longer needed, the reverberations from this summer's Supreme
Court of Canada decision continues. The AUCC, which urged its
members to sign a model licence with Access Copyright before the
release of the SCC decisions, is now the last major education
organization to address the issue.
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