Reports in the Globe yesterday
that U.S. telecom giant Verizon has offered $700 million for Wind Mobile
as part of an entry into the Canadian wireless market (which could also
include buying Mobilicity and bidding in the upcoming spectrum auction)
caused significant reverberations throughout the industry. The news sent
the stock price of the Canadian incumbents plummeting and analysts - who only days ago were assuring clients such a move would not happen ("highly unlikely" said Scotiabank's Jeff Fan; "what a joke" a telecom executive told Cartt.ca) - scurrying to assess the potential impact of a Verizon entry. Some have argued Verizon would have little interest in a smaller market like Canada, yet the company has actively promoted the elimination of foreign investment restrictions including in a 2008 submission to the Competition Policy Review Panel that detailed how "it had a long-standing presence in the Canadian telecommunications market".
There remain many questions about a Verizon entry into the market
via Wind Mobile, particularly with respect to the use of different
wireless technologies and spectrum, but there is little
doubt that the company could use its buying power to offer
better deals on devices and North America-wide plans that leverage its
U.S. network to offer significantly better roaming services. Moreover,
the U.S. footprint could appeal to the corporate sector, offering the
chance to steal customers from the current incumbents.
Less discussed would be the potential impact on broadcast rights and
Read More ...
TagsShareThursday June 27, 2013
On the broadcast rights issue, Verizon holds exclusive rights to
both the NFL
in the U.S., with the NFL deal signed a few weeks ago valued at $1
billion for four years (making Verizon one of the NFL's most
important corporate partners). Those rights are currently
by BCE in Canada, but a Verizon entry into Canada could
shake things up. Verizon could presumably complicate the BCE rights
by offering free access to NFL and NHL games to Canadian customers
when they travel to the U.S. More interestingly, Verizon could
make a play for joint U.S. - Canada rights in the future, moving
closer to an elimination of the geographic divide on content rights.
The broadcast distribution issue could have even bigger
repercussions. Of all the challenges faced by a foreign entrant such
as Verizon, the biggest may well be restrictions on foreign
broadcast distribution. The inability to offer television services
as part of a bundled offering is a clear disadvantage for a foreign
competitor, who is left chasing the low-end wireless-only consumer
market and the high-end corporate market, but without the big
consumer mid-to-high end market that often purchases bundled
Verizon could use their potential entry to blow this open by seeking
government support for changes to the restrictions on broadcast
distribution. Recommendations for changes to the BDU restrictions
date back many years (e.g., 2003
Industry Committee report
) but this would be a particularly
opportune time to raise it. The Canadian wireless market is a mess
and a Verizon entry would be viewed by the government as the best
chance to meet its goal of a fourth carrier and rescue the failing
new entrants. With billions at stake and with the CRTC re-examining
Canadian television later this year, opening up the BDU market would
be in line with a pro-consumer approach and bring greater
consistency to foreign investment rules in the communications
sector. There are still many questions about a Verizon entry into Canada as a fourth national player, but those questions should not be limited to telecom as there is the potential to similarly shake up the Canadian broadcast world.
In May 2010, then-Industry Minister Tony Clement introduced anti-spam
legislation that he admitted was long overdue. Clement acknowledged that
"Canada is seen as a haven for spammers because of the gaps in our
current legislation...a place where spammers can reside and inflict
their damage around the world." Despite heavy lobbying against the
legislation by groups concerned with new rules on electronic marketing,
the government pushed ahead, with the bill receiving all-party support
and royal assent by the end of that year.
As my weekly technology law column notes (Toronto Star version, homepage version), two-and-a-half years later, the anti-spam law has still not taken
effect, awaiting long-delayed final regulations that have been the
target of an intensive campaign to water-down or repeal the legislation
before it ever takes effect.
Last week, government officials disclosed that the best-case scenario
for the law is that final regulations are released late this summer with
the implementation of the law delayed until the fall of 2014.
Moreover, many provisions may not become operational until at least
2017, eight years after the first anti-spam law bill was tabled in the
House of Commons.
Read More ...
Yet even that timetable may be overly optimistic. With the
government reportedly preparing a major cabinet shuffle this summer
that may include another change at Industry Canada, it appears that
it may be ready to can its own anti-spam law. Should the cabinet
shuffle result in a new industry minister, the entire issue will
likely go back to the drawing board with the prospect of new
briefings, new consultations, and delays that could stretch into
2015 and beyond.
In fact, even if Industry Minister Christian Paradis takes advantage
of the narrow window this summer to obtain the necessary approvals
for final regulations, the law will contain a myriad of expanded
exceptions and implementation delays.
When Parliament passed the legislation, it was touted as one of the
toughest and most comprehensive in the world, adopting a pro-privacy
consent model that requires explicit approval from consumers in
order to send them commercial electronic messages. The law also
includes safeguards against software installations on personal
computers without consent, all backed by strong enforcement powers
that include significant penalties for violation.
As with many deals, however, it pays to read the fine print. The law
does not take effect until associated regulations are finalized and
lobby groups have used the regulation-making process to raise a host
of concerns. While some fine-tuning was to be expected, the
regulations have already expanded many exceptions and officials have
indicated that further changes may be on the way.
The heavy lobbying has left some politicians unsure of what to make
of the law, understandably concerned when small businesses claim it
will stop electronic marketing and charities express fear that it
will cut off important sources of funding.
Yet the reality is not nearly as frightening as critics suggest.
Businesses have been given years to adapt to the new system and a
simple request for customer consent sometime before 2017 would
address the key consent requirement. For charities, obtaining
lifelong consent (or until consent is withdrawn) can be easily
obtained when a member or volunteer joins the organization or when a
donor makes a contribution.
The government’s dithering on legislation is particularly surprising
given that it has otherwise pursued pro-consumer policies on telecom
and Internet issues. Delivering anti-spam legislation fits squarely
within that approach, since it provides Canadians with legal
protections against spyware and assurances that businesses and other
organizations will seek permission before sending electronic
marketing materials. Unless the government acts quickly,
however, the law may become a victim of a legislative delete button.
TagsShareTuesday June 25, 2013
Earlier this month, I wrote about a diplomatic conference in Morocco
designed to finalize a much-needed copyright treaty for the visually
impaired. The column noted that the treaty seeks to do two things: first, it establishes minimum standards for copyright limitations
and exceptions for the visually impaired. Second, the treaty would facilitate the export of accessible works.
The conference is now in its second week with growing fears that there
will be no deal. The major hold-out appears to be the United States,
which is blocking consensus on a range of issues. According to documents released over the weekend, the primary source of the U.S. opposition comes from the motion picture association, which has engaged in months of behind-the-scenes lobbying designed to dismantle the treaty. For example, the MPA is trying to block the inclusion of a fair use/fair dealing provision, despite the fact that many countries (led by the U.S.) already have such a rule.
Read More ...
TagsShareMonday June 24, 2013
The MPA has also encouraged the U.S. to block or muddy a digital
locks provision that would require an exception for the visually
impaired. Canada is among many countries (including Australia.
Switzerland, Argentina. Ecuador, Chile, Brazil, Holy See, Japan,
India, African Group, Guatemala, Bangladesh, China, Kenya, South
Africa, Morocco) that is supporting the following language:
A Member State/Contracting Party shall ensure effective and
necessary measures in accordance with that Member
State/Contracting Party’s national copyright law regarding
technological protection measures such that beneficiary persons
are not prevented from enjoying limitations and exceptions under
Yet the U.S. is opposed, seemingly based on opposition by the MPA
(there are reports
this morning that a compromise on this issue may have been reached).
The documents make it clear that the MPA and other rights holder
organizations fear a treaty for the visually impaired since it
establishes a precedent by focusing on the need for minimum
limitations and exceptions in copyright. In response, their
aggressive backroom lobbying tactics seek to maintain the rules that
stifle access for millions of blind and visually impaired people
around the world. The next few days will determine whether they will
succeed or if countries such as Canada will stand up for the rights
of the blind and visually impaired.
The CRTC's introduction of a consumer wireless code
earlier this month, which notably includes the right to terminate
wireless contracts after two years, is expected to put an end to
three-year wireless contracts in Canada. The code does not take effect
until December 2, 2013, but the CRTC has now indicated that it
anticipates that wireless carriers will transition to two-year contracts
before that date.
In a letter to the Canadian Wireless Telecommunications Association
this week, the Commission responded to questions about the
applicability of the code to contracts that pre-date the December 2nd
date. The letter included the following statement in discussing a
hypothetical scenario involving a three-year contract signed in October
Carriers are free to implement any part or parts of the Code prior to
the 2 December 2013 implementation date. It would be surprising that in
October of 2013 a customer would be offered a plan with a device
subsidy with a 36 month term as that would be contrary to the spirit of
the Code and the development of a more dynamic marketplace.
In other words, the code may only take effect in December, but the CRTC
anticipates carriers will adjust to its "spirit" much sooner.TagsShareFriday June 21, 2013
Earlier this week, I appeared on TVO's The Agenda for a wide ranging discussion on secrecy and transparency. The video of the program is embedded below.Read More ...
TagsShareFriday June 21, 2013
The House of Commons may have adjourned for the summer, but just hours before breaking, the government filed its response to the Standing Committee on Industry, Science and Technology's report
on the Intellectual Property Regime in Canada. That may sound dry, but
the document provides a clear indication of what the government has
planned for the coming years on IP reform.
So what's in store? Leaving aside an assortment of
promised studies, the government response
includes five notable plans (or non-plans).
Read More ...
TagsShareThursday June 20, 2013
First, the government will unsurprisingly march ahead with Bill
C-56, its anti-counterfeiting legislation. The bill will die on the
order paper if the government prorogues this summer, but look for it
to return fairly quickly. The bill was pushed through second
reading as a dry run to test the opposition party positions. The
government learned that the bill will not face significant
opposition - the parties want full hearings, but neither is strongly
opposed and the Liberals even seem to want ill-advised
targeting in-transit shipments.
Second, the government will lay the foundation for potential
international trade agreements such the Canada- EU Trade Agreement
and the Trans Pacific Partnership by launching consultations on
whether Canadian law should be consistent with several IP treaties,
including the Patent Law Treaty, the Madrid Protocol and Singapore
Treaty on trademarks, and the Hague Agreement on designs. As I
, this recommendation in the committee report arose
despite the fact the committee heard no testimony on the issue. That
provided a clear sign that the government wants to move on this
issue and this response simply confirms it. Given its past approach
on consultations, the government will undoubtedly claim support for
Third, consumer groups will be invited to join the IP Crime Working
Group that is led by industry groups and the RCMP.
Interestingly, the government states that "having consumer groups
participate in the Working Group will contribute to a more balanced
approach to combating counterfeiting and piracy."
Fourth, the government will review the rules protecting official
marks, which the committee heard is overbroad. The government
appears open to reform, committing to "review the current issues
around official marks and will consult with provinces, territories
and stakeholders on possible changes to the official marks regime in
order to remove barriers faced by Canadian companies seeking
Fifth, the government is not interested in expanding patentability
to new subject matter. The response notes the controversy
associated with business methods and software patents and seems
content to rely on current law and jurisprudence to address new
innovations without the need for additional reform.
In sum, this is a modest plan. Having expended significant political
capital to pass copyright reform legislation last year, it is
apparent that the government will address IP pressures that arise
from trade discussions (the IP agreements and anti-counterfeiting
bill) but little else.
The recent stories about surveillance in the United States and Canada
have generated increased debate in the media over the issue and I've
been privileged to participate in several discussions. Last week, I sat
down with Nick Taylor-Vaisey of Maclean's to discuss the issue. The
full interview is now posted here. Further, CBC's Cross-Country Check-Up spent two hours discussing surveillance and privacy on Sunday's show. I appeared as a guest at about the 54 minute mark. Yesterday, I also participated in a far-ranging debate on surveillance and transparency on TVO's The Agenda. The video version of the program should be online shortly, but in the meantime a podcast version is available.
Finally, my technology law column (Toronto Star version, homepage version)
this week focuses again on the disconnect between 20th century laws and
21st century surveillance. It notes that revelations about secret
surveillance in the United States involving
both Internet-based communications and the collection of metadata from
all cellphone calls immediately raised questions about the possibility
of Canadian involvement or the inclusion of Canadian data. Given the
common communication infrastructure and similarities between Canadian
and U.S. laws, it seemed likely that Canada was engaged in much of the
same activities. Within days, it was reported that Canada has its own
metadata surveillance program, with the ministerial approval coming in
2011 from Defence Minister Peter McKay. Read More ...
The government has tried to downplay the public concern by focusing
on two safeguards. First, it argues that its secret metadata
surveillance program only targets foreign communications. Second, it
notes that the data captured is metadata rather than content and
therefore does not raise significant privacy issues.
response should provide Canadians concerned for their privacy with
much comfort. Indeed, the emphasis on these two issues highlights
how Canadian surveillance laws have failed to keep pace with current
The suggestion that Canadians are not affected by surveillance
targeting foreign communications does not stand up to even mild
scrutiny. The same claims are made by other intelligence agencies,
with each claiming that they limit surveillance to foreign targets.
However, information sharing between intelligence services is
common, providing a backdoor mechanism to access information.
The prospect that U.S. surveillance becomes a key source for
Canadian agencies, while Canadian surveillance supports U.S.
agencies, does not strike anyone as particularly far-fetched. Wayne
Easter, a former government minister with responsibility for CSIS,
has said that such sharing is common. In other words, relying on the
domestic-foreign distinction is necessary for legal compliance, but
does not provide much assurance to Canadians that they are not being
Moreover, given the commingling of data through integrated
communications networks and "borderless" Internet services residing
on servers around the world, distinguishing between Canadian and
foreign data seems like an outdated and increasingly impossible
task. In fact, the reported decision to stop the Canadian
surveillance program several years ago arose in part due to fears of
overbroad surveillance. In the current communications environment,
tracking Canadians seems inevitable and makes claims that such
domestic surveillance is "inadvertent" increasingly implausible.
Assurances that metadata surveillance is less invasive than tracking
the content of telephone calls or Internet usage also ring hollow.
Metadata can include geo-location information, call duration, call
participants, and Internet protocol addresses. While officials
suggest that this information is not sensitive, there are many
studies that have concluded otherwise. These studies have found that
metadata alone can be used to identify specific persons, reveal
locational data, or even disclose important medical and business
The problem is that surveillance technologies (including the ability
to data mine massive amounts of information) have moved far beyond
laws that were crafted for a much different world. The geographic or
content limitations placed on surveillance activities by
organizations such as CSEC may have been effective years ago when
such activities were largely confined to specific locations and the
computing power needed to mine metadata was not readily available.
That is clearly no longer the case. The law seeks to differentiate
surveillance based on geography, but there is often no real
difference with today’s technology. Moreover, the value of metadata
is sometimes greater than the actual content of telephone
conversations. The current law provides few privacy protections and
ineffective oversight in the face of intelligence agencies investing
billions of dollars in surveillance technologies and
telecommunications and Internet companies providing assistance that
remains subject to court-imposed gag orders.
The legal framework leaves Canadians with 20th century protections
in a world of 21st century surveillance. If we genuinely believe in
preserving some privacy in an environment where everyone’s cellphone
call is tracked, we must be open to significant legislative reforms
and increased oversight that better reflects the realities of
modern-day communications surveillance.
TagsShareTuesday June 18, 2013
The Canada - EU Trade Agreement was in the news last week with multiple
reports on the likelihood of talks concluding within the next few days.
Some reports said a deal was possible, British Prime Minister David Cameron said a deal is close, but by the end of the week Prime Minister Harper was saying that there was no deadline to conclude negotiations. While there is another report
a deal may come today or tomorrow, if the past few years are any
indication, we can expect continued speculation without a deal for many
more months to come. A timeline of the talks for the past three years:
Read More ...
TagsShareMonday June 17, 2013
2010 - Trade Minister Peter Van Loan says that
negotiations could be concluded by the end of 2011
2011 - Van Loan says negotiations could be completed by
the end of 2011
2011 - Disagreement on public services. Sources say no
agreement in 2011.
2011 - Trade Minister Ed Fast says negotiations are in the
home stretch with only four or five major issues left
2011 - Fast says negotiations are "well advanced"
2011 - reports indicate negotiations will wrap up in early
2011 - Prime Minister Harper says "all the signs are that
we’re going to be able to conclude next year."
2012 - European officials say relatively few issues left
and expect a deal by the summer
2012 - Fast says "we are on track to conclude negotiations
2012 - Media reports say agreement being held up by
disagreement over rules of origin
2012 - Danish Trade Minister says CETA is 75 percent
2012 - European officials say talks expected to end this
year despite delays
2012 - Lead Canadian CETA negotiation lawyer quits
2012 - Fast says still aiming to conclude agreement in
2012 - Harper and German Chancellor Angela Merkel meet to
discuss CETA. Intellectual property, public procurement, and
services cited as key stumbling blocks
2012 - Fast says agreement is possible this year. By the
end of the month, says
year-end is a goal, not a target.
2012 - EU Trade Commission Karel de Gucht says a number of
big issues still remain. Points to intellectual property,
government procurement, foreign investment, agriculture, and
2012 - Media reports say Canada willing to cave on
intellectual property to clinch a deal.
2012 - Canada - EU make final push in negotiations
2012 - Reports say negotiations in the home stretch, deal
possible by January
2013 - German Ambassador to Canada says deal is possible
2013 - de Gucht comes to Ottawa but officials dismiss
hopes of finalizing deal. Media reports
that framework deal is on "Harper's desk"
2013 - Canada said ready to compromise on dairy
restrictions, but divide remains on beef exports, intellectual
property, and auto shipments. EU report also says
disagreements remain on public procurement and pork
exports. By the end of the month, de Gucht says
Canada must improve its offer.
2013 - Trade Minister Ed Fast says momentum building for a
CETA agreement, claiming the talks are "into the end game where
there is only a small number of issues left to be addressed".
say financial services still in dispute. EU officials urge
Canada to conclude agreement by the summer.
2013 - Minister of State for Finance Ted Menzies delivers
a talk supporting CETA but says there is no deadline for
completion of the agreement. Dutch minister says
deal pushed back to the summer. By the end of the month,
agreement could be announced in a few weeks.
2013 - Reports say Canada close to finalizing agreement.
say Harper wants deal by June 21st. Yet further reports say
agriculture the sole remaining issue (Canada-EU trade deal
nears; agriculture is final sticking point), though others say
human rights is a concern. By the end of the month, Canada is said
to be seeking "an agreement in principle."
2013 - Canada said to be linking all issues: agriculture
and market access, cars, rules of origin, government
procurement, and investment protection.
4, 2013 - Canada expected to announce trade agreement next
7, 2013 - Canada does not expect to sign agreement during
Harper visit in Europe.
Will Canada and the EU ultimately strike a deal? Maybe today or
tomorrow. But back in March I came
to Paul Wells' opinion
that a deal may not happen. A compromise is still possible, but both
sides still have reasons to hold back. Canada's participation in the
Trans Pacific Partnership may make it reluctant to cave on issues
that would be useful bargaining chips in those talks, while Europe's
talks with the U.S. mean that anything Canada gets, the U.S. gets
more so conceding on key issues to Canada comes at a bigger cost
later. Given the limited importance of the deal - the Canadian
market is just too small to make a major difference for Europe and a
Commission commissioned study
of the agreement concluded that
there were many areas that offer only limited Canadian gains - it
may remain in limbo for some time.
Canadian Heritage Minister James Moore tabled the WIPO Internet Treaties (the WIPO Copyright Treaty and the WIPO
Performances and Phonograms Treaty) earlier this week in the House of
Commons, starting the process of Canadian ratification of the treaties.
The move does not come as a surprise since Bill C-11, which received
royal assent just over one year ago, was designed to bring ensure
Canadian law conformed to the treaty requirements.
While there were some suggestions that the next step is formal notification with WIPO in Geneva, there are actually several steps required in Canada that will likely mean the treaties won't be in force in Canada until early 2014 (I wrote about the treaty ratification process in 2008). First, the treaties are subject to a waiting period of 21
sitting days. During that period, MPs may debate the treaties in the
House, raise questions, or bring motions related to the treaty. The 21
sitting day period started on June 12th. Since the House is scheduled to
break for the summer next week, the period will not be completed until
the first week of October. Once this process is completed, the Minister
of Foreign Affairs may then seek legal authority, through an Order in
Council, for Canada to prepare instruments of ratification of the two
treaties. Once the instruments of ratification are deposited with WIPO,
there is a further three month delay from the date of deposit.
Read More ...
TagsShareFriday June 14, 2013
One other requirement associated with the tabling of the treaties in
the House of Commons is the inclusion of an explanatory memorandum,
which I've obtained and posted here
Canada plans to make three reservations to the WPPT:
First, pursuant to Article 3(3) of the Treaty and to reflect
section 18 of the Copyright Act, Canada intends to declare that it
will not apply the criterion of fixation with regards to the
exclusive rights for producers of phonograms. A similar
declaration was made pursuant to the Rome Convention.
Second, pursuant to Article 3(3) of the Treaty and to reflect
section 20 of the Copyright Act, Canada intends to declare that it
will not apply the criterion of publication with regards to right
to remuneration for broadcasting and communications to the public.
A similar declaration was made pursuant to the Rome Convention.
Third, pursuant to Article 15(3), Canada intends to declare
that the right to equitable remuneration provided for at section
19 of the Copyright Act does not apply to any retransmission.
The surveillance story
may have started last week in the U.S. with the leak of several secret
surveillance programs including massive surveillance of the metadata
from all cellphone calls, but the Canadian questions continue to mount.
The U.S. disclosures immediately raised questions about the possibility
of Canadian involvement or the inclusion of Canadian data. Given the common communication infrastructure and the similarity between Canadian and U.S. laws, it seemed likely that Canada was engaged in much the same activities.
By Monday, the Globe was reporting that the CSEC has its own metadata surveillance program with
approval granted through a ministerial directive from Defence Minister
Peter MacKay in 2011. When questioned about the issue, MacKay sought to
assure Canadians that the surveillance only involved foreign
communications. Despite those assurances, the questions have continued
Read More ...
TagsShareThursday June 13, 2013
- How much U.S. collected data is shared with Canadian
agencies? Liberal MP Wayne Easter, who was a cabinet
minister with responsibility for CSIS in 2002-03, told
the Toronto Star that such sharing was common, providing a
back-door way to access information.
- Was the metadata surveillance program halted for several years
as the Globe reported or was it always operational? The Toronto
that Wesley Wark believes the program was never stopped. The
CSEC 2010-11 Annual Report suggests
that some activities were halted.
- Who actually knows the specifics on the metadata
program? The Globe reports
today that Senator Hugh Segal, the chair of the parliamentary
anti-terrorism committee, was unaware of the details of the
- What level of cooperation exists with Canadian telecom
companies? They aren't talking, prevented from doing so by gag
orders that keep their participation largely secret.
- The CSEC 2006-07 annual report indicated
that there was a review of CSEC use of metadata underway.
What happened to that review?
- How extensive is the CSEC activities on metadata? The
organization is currently recruiting
data mining specialists and data mining is a key
research focus for its Tutte Institute for Mathematics and
Computing. In fact, Bill Robinson pointed
out the CSEC's emphasis on data mining as far back as
- Does the CSEC even believe that metadata surveillance
constitutes an intercept? Robinson notes
that in 2007, then CSE Chief John Adams seemed to argue
that it would not. This is particularly relevant given that the
law requires permission for surveillance of private
communications. As Craig Forcese notes,
if the scope of metadata is limited, no permission would be
- Does the CSEC believe that there is a reasonable expectation
of privacy for metadata? The government tried to downplay
the privacy significance of IP addresses during the fight over
lawful access (Bill C-30). Would it try to argue that the
metadata does not enjoy privacy protections? Forcese raises
the Charter of Rights issues that hang in the balance.
- What does Privacy Commissioner of Canada Jennifer Stoddart
know? What is she prepared to do as part of a promised
investigation? Will the office use its audit power to also
focus on the major Canadian telecom companies?
- How have Canadian courts addressed these issues? Reported
cases are heavily redacted.
So far, there are many questions but few answers.