• an online child pornography tip service that receives thousands of tips
• ISPs that block access to child pornography images
• some of the toughest child pornography laws in the world
• numerous examples of child pornography arrests
• law enforcement focused on child pornography virtually to the exclusion of all other online issues

Further, while there are reports that Canada is a source of child pornography websites, a major European based study concluded that focusing on the World Wide Web and blocking content makes little sense in trying to combat child pornography (the same report found that image blocking initiatives like the Canadian Project Cleanfeed are ineffective).  Instead, the real problems lies in dissemination of child pornography in newsgroups, private groups, and other private spaces that fall largely outside the potential for tips envisioned by Bill C-58 or Canada's Project Cleanfeed.

"The new internet freedom provision now provides that any measures taken regarding access to and use of services and applications must always respect the fundamental rights and freedoms of citizens. Effective and timely judicial review is as much guaranteed as a prior, fair and impartial procedure, the presumption of innocence and the right to privacy. We need to find new, more modern and more effective ways in Europe to protect intellectual property and artistic creation. Repression alone will certainly not solve the problem of internet piracy; it may in many ways even run counter to the rights and freedoms which are part of Europe's values since the French Revolution."

The Spanish telecommunications industry is reportedly puzzled by the comments since the Spanish government has made it clear it does not plan to adopt a three-strikes approach.  Reding's comments - along with the protests in the UK - provide an important reminder that three-strikes remains highly controversial and is opposed by thousands of people as well as leading politicians.

For many years, Canadian broadcasters have benefited from simultaneous substitution, which allows them to air U.S. programs at the same time as U.S. broadcasters but to substitute their broadcast (complete with advertisements) on both channels.  That policy is the reason programs such as House or Desperate Housewives air simultaneously in the U.S. and Canada, creating an important commercial advantage for Canadian broadcasters.

The broadcasters now wish to expand the simultaneous substitution policy with program deletion. It would provide that when a Canadian broadcaster purchases the rights to a U.S. program, they would have the right to air it whenever they choose within a seven-day window. The hook is cable and satellite companies would be required to block the U.S. broadcast of the same program if it did not air simultaneously.  

The proposal, which would lead to millions of Canadians regularly encountering blank screens instead of expected programs, would perversely increase the attractiveness of U.S. programming.  Moreover, given the increasing expectation of on-demand program viewing, it seemingly would send more Canadians away from broadcast television to the Internet where there are no blackout messages and most programs are readily available in both legal and illegal forms.

The broadcasters also confirmed some Canadian communities will lose their over-the-air signal as part of the transition from analog to digital. For decades, Canadian broadcasters have used spectrum to transmit over-the-air analog broadcast signals; estimates indicate ten percent of Canadians still rely on over-the-air TV signals.

The shift to digital transmission brings several advantages including better image and sound quality and more efficient use of spectrum that will open the door to new telecom services. Yet the broadcasters are not willing to invest in digital transmitters for all communities, leaving residents of Kingston, Sudbury, Thunder Bay, and Kelowna (among others) without over-the-air signals.

Moreover, the broadcasters admit they will not be able to complete the transition by the August 31, 2011 deadline.  Instead, they now target 2013, four years later than their U.S. counterparts.

A delay necessarily will hold up the availability of new spectrum to be freed-up as part of the transition. This spectrum - known as the 700 MHz spectrum - opens up a host of possibilities for new innovation, competitors, and open Internet access.  For Canadians anxious for new entrants into the wireless sector, delayed availability of the spectrum will mean more delays in spectrum auctions, keeping the market at a stand-still and costing taxpayers billions of dollars in lost spectrum revenue.

If the plan is fully adopted, Canadians would be left with blacked out broadcasts, lost spectrum revenue, and delayed telecom competition.  After a week of hearing from broadcasters and cable companies, it is clear that the hearing is about far more than TV taxes and saving local television.

The US Chamber of Commerce estimates that counterfeiting and piracy costs the US economy approximately $250 billion per year. Given that the GDP of the Canadian economy is approximately nine per cent of the US economy, the cost of counterfeiting and piracy in Canada is approximately USD $22.5 billion.

As I reported a couple of years ago, there are two related sources for the claims that puts Canadian counterfeiting over $20 billion. The first was a CTV news report that was based on a completely unsubstantiated claim that claimed 20% of the Canadian market is "pirate product."  The second was a 2005 powerpoint presentation from the Canadian Manufacturing and Exporters that featured a single bullet point claiming $20 - 30 billion in losses annually. The source for that claim was simply taking 3 - 4 % of the value of Canadian trade.

The OECD data would suggest that counterfeiting in Canada is far lower than these estimates.  Using the basic metric of percentage of trade, Canada represents about 2.8% of world trade or roughly $7 billion of $250 billion (in a $1.4 trillion economy).  That number is less than one-third the claims of the Ontario Chamber of Commerce. 

In fact, there is reason to believe that the Canadian number is actually even lower. The OECD also ranks all countries through a "General trade-related index of counterfeiting and piracy of economies."  Canada fares well - ranking as among the lowest rates of counterfeiting and piracy within the economy among developed countries - with a rate that is lower than Australia, France, Italy, Korea, the Netherlands, Spain, the UK, and the United States (among others).  Our low counterfeiting ranking suggests that assuming Canada is equal contributor to counterfeits in line with our trade ranking is likely wrong.  Instead, Canada is a low piracy country despite persistent efforts to paint us as a piracy haven.

The two WIPO Internet Treaties (WCT and WPPT) were negotiated in a completely open meeting at the Geneva Convention Center. The public was allowed to attend without accreditation. The draft texts for the WCT and the WPPT were public, and the U.S. government requested comments on the draft texts, which were available, among other places, from the U.S. Copyright Office.

Two other documents offer similar reviews of the transparency of negotiation documents and opportunities for public participation.  The inescapable conclusion is that the ACTA approach is hardly standard.  Rather, it represents a major shift toward greater secrecy in the negotiation of international treaties on intellectual property in an obvious attempt to avoid public participation and scrutiny.

1.    Copyright policy has gone mainstream.  A Canadian government last consulted the public on copyright in 2001. That consultation generated approximately 700 responses, which at the time was regarded as a significant participation rate.  The 2009 consultation - with over 8,000 submissions, two packed townhalls, nearly a dozen roundtables, thousands of comments in an online discussion forum, and hundreds of news articles, blog postings, and tweets - demonstrated that Canadians care deeply about copyright and are determined to have their views reflected in government policy.  When a copyright bill is unveiled, Canadians will be paying close attention.

2.    There is support for implementing the World Intellectual Property Organization's Internet Treaties, but on Canadian terms.  Canada signed the WIPO treaties over a decade ago and many Canadians believe that we should implement them.  However, a consistent theme throughout the consultation was the need for Canada to take full advantage of the flexibility within the treaties by granting new protections to the copyright industries while also preserving consumer rights.  This was most commonly articulated with the recommendation that new legal protections for digital locks be linked to cases of actual infringement.

3.    Groups from across the spectrum support fair dealing reform.  Fair dealing emerged as one of the most discussed issues with near universal agreement that it is in need of reform.  The divide is really over which approach to take.  Many groups called for a flexible approach that builds on current Canadian law by opening door to additional categories of fair dealing (the "such as" approach).  Other recommended adopting narrow, specific reforms including new exceptions for parody and satire.

4.    Canadians want to modernize copyright law to reflect common consumer uses.  Thousands of Canadians agreed with the notion of updating copyright law by ensuring that the law legalizes common activities such as recording television shows, format shifting content between devices, interacting with electronic books, or engaging in remixing of content.  Canadians are comfortable with technology and expect that the law should keep pace with reasonable uses.  Indeed, even the Canadian Radio-television and Telecommunications Commission posted a submission calling for the formal legalization of some of these activities.

5.    Ensuring creators get paid is essential.  The most consistent theme from Canadian creator groups was also the simplest - creators want to be paid for their work.  That led to the articulation of two visions.  One possibility is the expansion of collective licencing, such as broadening the private copying levy to more devices and content.  Alternatively, some creators focused on market-based solutions with new business models that offer potentially lucrative opportunities.

6.    Government should lead by example.  Clement and Moore both seemed surprised by the frequent requests for the abolition of crown copyright, which grants the government exclusive rights over its own publications.  Librarians, archivists, and citizens groups all noted the importance of unfettered access to public documents, criticizing outdated notions of requiring permission to copy laws, court decisions, or other government documents.  

7.    Copyright reform is directly linked to broader digital policy issues.  Many Canadians pointed to the need for a holistic, forward-looking approach to copyright reform that acknowledges the links between copyright policy and Canada's broader digital policy.  Hundreds invoked the need for net neutrality and appropriate conduct by Internet providers.  Moreover, submissions frequently cited the need to establish appropriate intermediary liability and Internet provider safe harbour rules that provide effective, proportional remedies and recognize the critical importance of Internet access for all.

8.    Preserve Canadian choices by pursuing a Made-in-Canada solution.  Canadians are acutely aware of the copyright reform experiences in other countries and regularly pointed to other countries as examples both for what to do and what to avoid.  Further, many expressed concern that the current negotiations on an Anti-Counterfeiting Trade Agreement could undermine the government's ability to craft a much-desired Canadian-specific solution.

This is hardly the first time the foreign control issue has been raised in Canada.  There have been earlier recommendations to scrap the requirements, most recently in the 2006 Telecom Policy Review Committee report, which concluded that Canada has "one of the most restrictive and inflexible set of rules limiting foreign investment in the telecommunications sector" among all OECD countries.

With hindsight, it should have been obvious that the foreign control issue would be the elephant in the room around the government's efforts to inject greater competition into the Canadian telecom sector.  There is little doubt that officials - not to mention Canadian consumers - were anxious to encourage new entrants.  While the set-aside in the spectrum auction guaranteed the new entrants, leaving the foreign control rules untouched meant the job was only half-done.

With the Globalive entry into the Canadian market at risk and hundreds of millions in spectrum in limbo, Canadians must ask hard questions about the merits of foreign control restrictions.  

The days of retaining Canadian control over physical telecommunications infrastructure connected to millions of homes are over. Wireless networks involve significant investments in cellphone towers, but not direct connectedness into individual homes.

Further, the notion that Canadian control guarantees Canadian jobs is also part of a by-gone era.  Canadian carriers regularly outsource some of their customer service jobs out of the country.  Meanwhile, other parts of the organization - retail and business sales as well as network building - involve jobs that will remain in Canada regardless of a company's country-of-origin.  While some head office jobs may be at risk, new companies operating in Canada could potentially create more jobs, not fewer.

It is tempting to blame the CRTC or the incumbent telecom providers for the current mess, but the real culprit lies with outdated legislation that prioritizes Canadian ownership over a competitive Canadian marketplace. The solution lies in changing the law to facilitate foreign ownership of common carriers - both to facilitate immediate competition and to pave the way for more foreign bidders in the next round of spectrum auctions.