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The Globe reports
on a new BC poll that finds that a strong majority of provincial
residents oppose Bill C-30. The report indicates 73% oppose the online
surveillance bill and 55% strongly oppose it.
c-30, lawful access Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday March 16, 2012 |
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Great,
great TED talk from Rob Reid on the funny numbers often promoted by
music and movie lobby groups in the context of copyright.
copyright math, ted talk Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday March 16, 2012 |
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Industry Minister Christian Paradis unveiled
the government's
plans for the next spectrum auction yesterday with a plan that hits
many of the right notes but remains too timid in places. The reliance on spectrum caps is
reasonable, but the foreign ownership restriction changes do not go far
enough and the decision to forego mandated open access is a blow to
Canada's still-missing digital economy strategy. Overall, the plan
(spectrum auction + foreign ownership policy) feels like one that a
minority government would release as it seems designed not to generate
too much opposition (incumbents and new entrants will see enough that
they like that few - WindMobile excepted - will scream too loudly).
The government's vision of fostering new competition is somewhat
limited. The primary goal appears to be the creation of a strong,
national fourth carrier in the market. The spectrum caps and foreign
ownership
changes are both geared toward giving a fourth player the necessary
spectrum and capital to compete with Bell, Telus and Rogers. That
suggests consolidation of the current smaller players in the hope of a
single, stronger competitor - possibly foreign owned - challenging the
incumbents. Given the current environment, it is not clear that this
generates significant new consumer choice.
While the headlines have focused on changes to the foreign ownership
rules, the new changes are rather timid. There is an opening for a
foreign competitor to enter the marketplace by buying some of the
smaller players or aggressively bidding on spectrum, but there is no
vision of throwing the market open to full-scale competition that might
include a major international player entering the market by buying an
incumbent. That would shake up the competitive landscape far more than
the incremental, go-safe approach in this policy.
Read More ...
Last month, I wrote a scorecard
column
on the spectrum policy issue by pointing to a number of key issues. The
government's policy addresses many of the issues raised in the post
(original post in italics):
The last spectrum auction included a
set-aside, which opened the door to a handful of new competitors such
as Globalive, PublicMobile, and Mobilicity. A further set-aside may
make sense since this round of new entrants may look to use the
spectrum primarily for wireless broadband services, providing a
potential alternative to the cable and telecom dominance. If another
set-aside proves too unwieldy, a spectrum cap, which would limit the
amount of spectrum any single company could hold, may emerge as the
alternative. A spectrum cap might prove effective if combined with two
additional conditions.
Industry Canada has indeed opted for a spectrum cap, limiting the
number of blocks that can be held by an incumbent for the prime
"beachfront" spectrum. The approach should ensure at least one new or
smaller entrant in most, though not all, markets.
First, the implementation of a
use-it-or-lose it principle that would require all bidders to use the
spectrum within a defined period. The use-it-or-lose-it approach would
help guard against the hoarding of spectrum, particularly for
incumbents who may overbid in the hopes of keeping new competitors out
of the market.
The policy includes a use-it-or-lose it principle, requiring the same
usage requirements as previous auctions and adding certain build-out
requirements within five years of licensing (with further requirements
within seven years). However, not all carriers will be required to meet
those requirements, particularly if they only acquire one 700MHz block
in a single market.
Second, safeguards against
opportunistic flipping of the spectrum with the prohibition on its sale
within the first five years of the auction.
The spectrum caps put in place for the 700 MHz auction will continue to
be in place for five years following licence issuance. No transfer of
licences or issuance of new licences
will be authorized if it allows a licensee to exceed the spectrum cap
during this period.
Another critical issue is who should
be entitled to bid for the spectrum. The last spectrum auction featured
Canadian ownership requirements, thereby limiting potential entrants.
Given that Canada is one of the only developed countries that has
retained significant telecom foreign ownership restrictions, the
auction provides a tailor-made opportunity to eliminate the
restrictions by opening the market to all bidders.
As discussed above, the government has opened the door to foreign
investment, though not as widely as it could (or should). The foreign
investment restrictions will be lifted for any carrier with less than
ten per cent market share in the Canadian telecom market (effectively
anyone other than Bell, Telus or Rogers). Restrictions remain in place
for broadcasters and broadcast distribution companies. The government
could have gone further. In my view, it should have removed telecom
foreign ownership restrictions altogether and even considered removing
restrictions on the broadcast side as well. As I argued
last year,
there is no reason to think that Canadian content rules cannot be
applied to foreign-owned broadcasters or that Canadian-owned
broadcasters are any more likely to prioritize Canadian content.
The spectrum policy decision will
also determine which spectrum is available for auction and which is
reserved for alternate purposes. The government has already indicated
that it plans to grant some of the spectrum to law enforcement
agencies, which intend to create their own emergency wireless network.
As the government had previously indicated, it has reserved some
spectrum for public safety.
Many leading technology companies
have recommended allocating some of the spectrum for unlicensed
purposes. This spectrum, which would be free to anyone to use without
the need for licence or government approval, could yield new services
and technologies.
No word yet on the so-called "white spaces" issue. The policy rejects
the inclusion of mandated open access for devices and applications, as
the FCC established during its 700 MHz auction.
Beyond the technical details of the
spectrum auction, the final billion-dollar question is what the
government should do with the auction proceeds. While the $4 billion in
proceeds from the last auction went into general revenues, this auction
represents the best – perhaps only – opportunity to access billions of
non-tax dollars for the digital economy. The money could be used
to
support broadband initiatives, digital content creation, and digital
skills programs.
The 700 MHz auction will not occur until 2013, so proceeds will have to
wait awhile. Moreover, indications are the government plans to use the
moeny for deficit reduction, an unsurprising decision but yet another
blow to the still-unreleased digital economy strategy.
The policy deals with several issues that I did not discuss in my
initial post. Most notably, it promises changes to roaming and tower
sharing policies that are designed to assist new entrants. It also has
policies to encourage rural build-out, though the fine print suggests
this may somewhat modest.
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The Bill C-11 legislative committee concluded
its clause-by-clause review yesterday as eight government amendments
were added to the bill and all opposition amendments were defeated. The
amendments included an expanded enabler provision and some modest
tinkering to other elements of the bill. There are still several steps
needed before the bill passes including third reading at the House of
Commons, Senate review, and ultimately royal assent, but Canadian
copyright reform is well on its way to completion before the summer
starts.
In the days leading up to the clause-by-clause review, many focused on three key
issues:
no SOPA-style amendments such as website blocking or warrantless
disclosure of information, maintaining the fair dealing balance found
in the bill, and amending the digital lock provisions. By that
standard, the changes could have been a lot worse. The government
expanded the enabler provision, though not as broadly as CIMA
requested. Virtually all other copyright lobby demands - website
blocking, notice-and-takedown, iPod tax, copyright term extension,
disclosure of subscriber information - were rejected. Moreover, the
provisions supported by consumer and education groups including user
generated content protection, time shifting, format shifting, backup
copies, Internet provider liability, and statutory damages reform were
left untouched. This represents a major victory for the many Canadians
and groups such as Open
Media that spoke out on these issues.
Read More ...
The fair dealing provision was similarly left unchanged despite a full
court press from publishers and copyright collectives who sought
elimination of the education category within fair dealing (didn't
happen), inclusion of the Berne three step test in the law (didn't
happen) or a new fair dealing test that overrules the Supreme Court of
Canada CCH test (didn't happen). The expanded fair dealing provision
will not cause the horrors claimed by those groups and it is heartening
that the government dismissed the misinformation campaign.
The only loss was the least surprising - digital locks. Despite
widespread support for compromise legislation and sensible amendments
from both the NDP and Liberals, the government rejected any changes.
Given the government's consistent support for digital locks, the
ongoing pressure from the U.S., and Prime Minister Harper's direct
intervention on the issue in 2010, amending the digital lock rules
presented a major challenge. Government MPs yesterday emphasized the
possibility
of future new exceptions via regulation but that will be cold comfort
in the short term to those with perceptual disabilities, researchers,
documentary film makers, consumers, and the many others adversely
affected by the restrictive approach. In fact, one NDP MP raised the
possibility of constitutional challenges to the bill.
As for the weeks ahead, Canadians must continue to make their views
known to their MPs and the government ministers. As Russell McOrmond
has accurately noted,
the bill gets the copyright provisions right and
non-copyright provisions wrong. In other words, those seeking balanced
copyright may have lost on digital locks, but won most other battles
(even Terence Corcoran acknowledges
the impact). The copyright lobby groups that saw many of their demands
rejected will undoubtedly be out in force in the weeks ahead in an
effort to make last minute changes. Canadians
should continue to speak out in order to preserve the many good
provisions in Bill C-11 and hold out hope that modifications to digital
locks - or at least a commitment to some additional exceptions via
regulation - are possible.
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The Bill C-11 committee has just opened the clause-by-clause review of
the copyright bill with 39 amendments on the table: 8 from the
goverment, 17 from the NDP, and 14 from the Liberals. The good news is
that the misinformation campaign on issues such as fair dealing, user
generated content, consumer provisions, statutory damages, and Internet
provider liability has largely failed as the government is not
proposing significant changes to those provisions. These all represent
good compromise positions that will likely remain intact.
Unfortunately, the digital lock provisions will also remain largely
unchanged as the government is not proposing to link circumvention to
copyright infringement (both the NDP and Liberals will put forward such
amendments). The music and movie lobby are getting one of their demands
as the enabler provision will be expanded from targeting sites
"primarily designed" to enable infringement to providing a service
primarily for the purpose of enabling acts of infringement. The CIMA
demand for an even broader rule has been rejected.
A summary of some of the proposed amendments, by party (note: subject to possible change should a party decide not to introduce the amendment):
Read More ...
Conservatives
- change enabler provision to providing a service primarily for the
purpose of enabling acts of infringement
- a slight tightening of the private purposes copying exception and
the time shifting exception by limiting to the specific individual
- a new limitation on computer interoperability exception that
restricts the use or disclosure of the information reproduced for the
purposes of making the programs interoperable
- a new limitation on disclosure of security flaws that requires
advance notice to the copyright owner unless it is in the public
interest to have it disclosed without such notice
- a change to the network provider safe harbour that allows for
extraction of meta-data
- a limitation on the injunction power against information location
tool providers
NDP
- a new resale right for visual artists
- adding the Supreme Court of Canada's six factor test to fair
dealing
- making the user generated content provision subject to moral
rights
- remove the 30 day destruction requirement on lessons
- change the restriction on digital library loans by requiring a
notification of restrictions rather than the need to take measures to
stop restricted activity
- amend the new broadcaster provision on ephemeral rights
- expand the provision on perceptual disabilities
- link circumvention to copyright infringement
Liberals
- adding a new conditions to time shifting and backup copy
provisions that restricts the right to sell or distribute the recording
or copy
- change the 30 day destruction requirement on lessons
- amend the new broadcaster provision on ephemeral rights
- removing the five day use restriction on digital library loans
- link circumvention to copyright infringement
The government's decision to leave the digital lock rules untouched is
unsurprising but still a disappointment, since both opposition parties
were clearly persuaded that such a change was needed. On the other
hand, given the heavy lobbying by many groups demanding changes to fair
dealing (all parties rejected calls for a new fair dealing test or
limitations on education), user generated content (there were multiple
calls for its removal), statutory damages (there were calls for
unlimited damages), and Internet liability (there were calls for
notice-and-takedown and subscriber disclosure requirements), the
government's proposed amendments are relatively modest.
The thousands of Canadians who spoke out may have had an effect as the
bill could clearly have been made far worse. There is a need to remain
vigilant, however, as the clause-by-clause review has just begun, more
changes could still come, and the lobbying will not end until the bill
receives royal assent. With that in mind - and with both opposition
parties supporting sensible compromises on digital locks - there is
still a need for Canadians to speak to their MPs and other elected
officials.
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Days after the Conservative government introduced its copyright reform
bill in June 2010, Canadian Heritage Minister James Moore spoke out in
support of the legislative package by notoriously labeling critics as
"radical
extremists" who should be confronted until "they are
defeated." This week, the copyright bill hits the home stretch as the
Bill C-11 legislative committee conducts its final "clause-by-clause"
review.
The bill has been a subject of debate for nearly 20 months and over the
course of that period, there has been a surprising role reversal.
My weekly technology law column (Toronto
Star version, homepage
version) notes that Moore’s vision of strong support from copyright
lobby groups has been
replaced by demands to overhaul the legislation with a broad array of
extreme measures, while the supposed critics - library groups,
educators, consumer associations, and individual Canadians - have
endorsed much of the legislation with only requests for modest changes
to the controversial digital lock provisions.
Read More ...
This certainly wasn't the scenario Moore and the government envisioned
when then Bill C-32 (which later became Bill C-11) was tabled. Groups
representing the music, movie, and software industries quickly thanked
the government for moving on the copyright file and pledged to support
the bill.
Yet over the past two weeks, those same groups have steadily marched to
Parliament Hill to demand significant reforms. The Canadian Independent
Music Association is seeking changes that would create new liability
risks for social networking sites, search engines, blogging platforms,
video sites, and many other websites featuring third party
contributions. It is also calling for a new iPod tax, an extension in
the term of copyright, a removal of protections for user generated
content, parody, and satire, as well as an unlimited statutory damage
awards and a content takedown system with no court oversight.
Quebec music groups have asked the government to add a requirement for
Internet providers to disclose customer name and address information to
copyright owners without court oversight, a change that even
Conservative MPs noted look a lot like the widely criticized lawful
access legislation.
The Canadian Music Publishers Association added to the demand list by
calling for website blocking provisions, arguing that Internet
providers take an active role in shaping the Internet traffic on their
systems and therefore should face "a positive obligation for service
providers to prevent the use of their services to infringe copyright by
offshore sites." Meanwhile, writers and publisher groups asked the
committee to overturn the Supreme Court of Canada and its test to
determine whether the use of work qualifies as fair dealing.
The demands for dramatic change to Bill C-11 can be contrasted with the
Canadian Library Association, which put forward only two suggested
changes. The first focused on ensuring that a provision on facilitating
access for the visually impaired be consistent with an international
treaty currently being developed at the World Intellectual Property
Organization.
The second would ensure that rights holders enjoy legal protection for
digital locks but that such protection is linked to actual copyright
infringement. That approach - which is widely endorsed by
consumer
groups and many businesses - is consistent with international law and
the practices of some of our trading partners.
As the committee starts its final debate on the bill, the question now
is which lobbying technique will sway the government: will it be the
extreme approach of inundating the committee with a long list of
demands in the hope that some stick or the narrow strategy of adopted
by librarians and consumer groups. The future of Canadian copyright law
lies in the answer.
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Appeared
in the Toronto Star on March 11, 2012 as Copyright Bill Hits the Home
Stretch
Days after the Conservative government introduced its copyright reform
bill in June 2010, Canadian Heritage Minister James Moore spoke out in
support of the legislative package by notoriously labeling critics as
"radical extremists" who should be confronted until "they are
defeated." This week, the copyright bill hits the home stretch as the
Bill C-11 legislative committee conducts its final "clause-by-clause"
review.
The bill has been a subject of debate for nearly 20 months and over the
course of that period, there has been a surprising role reversal.
Moore's vision of strong support from copyright lobby groups has been
replaced by demands to overhaul the legislation with a broad array of
extreme measures, while the supposed critics - library groups,
educators, consumer associations, and individual Canadians - have
endorsed much of the legislation with only requests for modest changes
to the controversial digital lock provisions.
This certainly wasn't the scenario Moore and the government envisioned
when then Bill C-32 (which later became Bill C-11) was tabled. Groups
representing the music, movie, and software industries quickly thanked
the government for moving on the copyright file and pledged to support
the bill.
Yet over the past two weeks, those same groups have steadily marched to
Parliament Hill to demand significant reforms. The Canadian Independent
Music Association is seeking changes that would create new liability
risks for social networking sites, search engines, blogging platforms,
video sites, and many other websites featuring third party
contributions. It is also calling for a new iPod tax, an extension in
the term of copyright, a removal of protections for user generated
content, parody, and satire, as well as an unlimited statutory damage
awards and a content takedown system with no court oversight.
Quebec music groups have asked the government to add a requirement for
Internet providers to disclose customer name and address information to
copyright owners without court oversight, a change that even
Conservative MPs noted look a lot like the widely criticized lawful
access legislation.
The Canadian Music Publishers Association added to the demand list by
calling for website blocking provisions, arguing that Internet
providers take an active role in shaping the Internet traffic on their
systems and therefore should face "a positive obligation for service
providers to prevent the use of their services to infringe copyright by
offshore sites." Meanwhile, writers and publisher groups asked the
committee to overturn the Supreme Court of Canada and its test to
determine whether the use of work qualifies as fair dealing.
The demands for dramatic change to Bill C-11 can be contrasted with the
Canadian Library Association, which put forward only two suggested
changes. The first focused on ensuring that a provision on facilitating
access for the visually impaired be consistent with an international
treaty currently being developed at the World Intellectual Property
Organization.
The second would ensure that rights holders enjoy legal protection for
digital locks but that such protection is linked to actual copyright
infringement. That approach - which is widely endorsed by
consumer groups and many businesses - is consistent with international
law and the practices of some of our trading partners.
As the committee starts its final debate on the bill, the question now
is which lobbying technique will sway the government: will it be the
extreme approach of inundating the committee with a long list of
demands in the hope that some stick or the narrow strategy of adopted
by librarians and consumer groups. The future of Canadian copyright law
lies in the answer.
Michael Geist holds the Canada
Research Chair in Internet and E-commerce Law at the University of
Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online
at www.michaelgeist.ca.
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The Liberal Party has launched a petition
calling for an amendment to the Bill C-11 digital lock rules.
Consistent with views expressed from business
groups, creator associations, consumer groups, and education
associations,
the petition calls for an amendment that would link circumvention to
actual copyright infringement. It does so by amending Section 41 of the
bill by adding the words "for any infringing purpose" to the definition
of circumvent.
The petition is in addition to the Open
Media Say No campaign
(which allows users to sign a petition and email MPs on digital locks,
SOPA-style reforms and fair dealing) and the ability for Canadians to email
committee MPs directly.
With clause-by-clause review slated for Monday, this is one of the last
opportunities to speak out on the future of Canadian copyright law.
c-11, copyright, digital locks, liberals Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSaturday March 10, 2012 |
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The Chair of the Canadian Bar Association's IP Committee, Torys lawyer
Andrew Bernstein, has sent a public letter
to the thousands of IP Committee members responding to the media
reports of pressure to withdraw a CBA copyright submission. The CBA
letter not only debunks claims of secrecy and plagiarism, but calls
into question the motivation of the 34 lawyers who signed onto the
letter.
The CBA letter confirms my previous post
that there was no plagiarism given the use of materials from a
predecessor committee. It also includes two important revelations (both
new to me). First, Bernstein reveals that he personally provided the
original letter writers - Casey Chisick and Claude Brunet - with an
explanation for how the drafting of the submission occurred and why
claims of plagiarism were false. Despite being briefed on the issue,
Chisick and Brunet proceeded with the letter and 32 others signed it.
Second, the repeated claims that the working group membership was
secret are unfounded. Bernstein notes "the names of the Working Group
members are available to any Section member who undertakes not to
disclose the names outside the CBA for lobbying purposes." In other
words, thousands of CBA members have access to the membership list on
the single condition that it not be used for lobbying purposes. That
the 34 lawyers presumably decided not to accept those terms points to what may be a key motivation for many behind the letter. It is not about CBA process
concerns nor about plagiarism. It is lobbying, designed to distract
from the SOPA-style demands, iPod taxes, and reduced fair dealing
reforms many of the lawyers and their clients are seeking to be
included within Bill C-11. As I stated yesterday, the best response to
this shameful attack is for Canadians to speak out
with their views on copyright before it is too late.
c-11, cba, copyright Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday March 09, 2012 |
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Open Media has launched a campaign
to encourage Canadians to speak out before Monday's Bill C-11 meeting.
The group makes it easy to speak out against SOPA style reforms, harms
to fair dealing, and unduly restrictive digital lock rules.
Postmedia's Sarah Schmidt covers the upcoming amendments here.
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