With the latest phase of Canadian copyright reform now complete, the
government may soon turn to the question of what comes next. Given last
year's major legislative overhaul and the landmark series of copyright
decisions from the Supreme Court of Canada, significant substantive
changes are unlikely to be on the agenda for the foreseeable future.
Instead, my weekly technology law column (Toronto Star version, homepage version) argues that it is time for the government to set its sights on the
Copyright Board of Canada, a relatively obscure regulatory body that
sets the fees to be paid for the use of copyright works. The Board is
largely unknown in public circles, but it has played a pivotal role in
establishing the costs associated with private copying (including a
one-time iPod levy), educational copying, and the use of music by
Canadian broadcasters.
The litany of complaints about the Board has mounted in recent years:
the public rarely participates in its activities due to high costs, it
moves painfully slowly by only issuing a handful of decisions each year,
and its rules encourage copyright collectives and users to establish
extreme positions that make market-driven settlements more difficult.
Moreover, over the past ten months, the Supreme Court has ruled that its
approach to fair dealing was unreasonable, the Board itself admitted to
palpable error in a decision that resulted in a hugely inflated tariff,
and it has ignored the will of Parliament in reshaping Canadian
copyright law. The Board may keep a steady stream of lawyers and
economists busy, but it is time to acknowledge that it is broken.
Read More ...
Last summer's five Supreme Court copyright decisions were all the
result of appeals from Board decisions. In the most closely
watched case - that involving the scope of fair dealing for copying
within Canadian education - the majority of court lambasted
the Board's approach, using terms such as "flawed", "unreasonable",
and "skewed" as well as questioning analysis reached despite an
"evidentiary vacuum". The Board responded with a thinly veiled shot
at the court.
Months later, the Board released decision involving a tariff for the
reproduction of music works in cinematographic works for private use
or for theatrical exhibition. The Canadian Association of Film
Distributors and Exporters had proposed a tiered tariff approach of
a maximum of 2 cents per copy containing 30 minutes of music or more
(less music would result in a lower tariff).
The Board mistakenly established a tariff of three cents per copy,
incorrectly treating three tiers as three cents. The result was the
prospect of royalties that were as much as 15 times higher than
those proposed by the film distributors. The Board was later forced
to acknowledge
the error, admitting that the mistake resulted in procedural
unfairness.
Perhaps most troubling is the sense that the Board has little regard
for the recent legislative and caselaw emphasis on the need for
balance. The latest reforms included provisions that removed the
need for payment for some copying by radio stations. The copyright
collectives warned a House of Commons committee that the bill would
"eliminate the revenues authors and publishers now received from
broadcasters when reproductions of musical works are made and used
for broadcasting purposes."
Soon after the bill took effect, the Canadian Association of
Broadcasters filed an
application with the Board to rescind the commercial radio
tariff. The Board dismissed
the application, arguing that the committee comments did not
constitute a basis for statutory interpretation. Instead, it called
the CAB's application "untenable" and engaged in its own statutory
interpretation, suggesting that broadcasters might not be able to
rely on the new exceptions.
The decision is par for the course for a board that has seemingly
shifted from neutral arbiter to self-appointed copyright collective
guardian with little regard for Parliament and the Supreme
Court. If the government is looking for the next copyright
issue to examine, it might well focus on a board that is largely
inaccessible to the public and content to craft its own view of
copyright regardless of what the government legislates or the
Supreme Court says.
copyright, copyright board Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday May 21, 2013 |
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The examination of the proposed Bell acquisition of Astral
Communications took place last week in Montreal with the Canadian
Radio-television and Telecommunications Commission hearing from a wide
range of supporters and opponents of a deal that only last year was
rejected as contrary to the public interest.
As Bell and Astral sought to defend their plan, a familiar enemy emerged
- Netflix. What does a U.S.-based Internet video service with roughly
two million Canadian subscribers have to do with a mega-merger of Bell
and Astral?
My weekly technology law column (Toronto Star version, homepage version) notes that for the past few years, it has become standard operating procedure at
CRTC hearings to ominously point to the Netflix threat. When Internet
providers tried to defend usage based billing practices that led to
expensive bills and some of the world's most restrictive data caps, they
pointed to the bandwidth threat posed by Netflix. When cultural groups
sought to overturn years of CRTC policy that takes a hands-off approach
to Internet regulation, they argued that Netflix was a threat that
needed to be addressed. So when Bell and Astral seek to merge, they
naturally raise the need to respond to Netflix.
Read More ...
This is an age-old strategy that seems to resurface every decade. In
the 1980s, it was the effort to keep large U.S. specialty channels
such as ESPN and MTV out of the market that led to the creation of
TSN and MuchMusic. In the 1990s, the U.S. satellite television
providers were branded the "death stars" and kept out of the market
to allow for Canadian entries. In the 2000s, it was U.S. satellite
radio services that were denied entry until acquiescing to minimum
Canadian content requirements.
In this decade, it is the Internet's turn as over-the-top video
services such as Netflix are viewed as threats to established
Canadian broadcasters, broadcast distributors, and content creators.
To date, the CRTC has largely skirted the issue by pointing to
studies that suggest that Netflix and other over-the-top video
providers have only had a minimal impact on the consumer market. But
that won't last. Whether Netflix or the myriad of other online video
services - from YouTube's forthcoming subscription services to the
National Film Board's documentary film Netflix competitor (scheduled
to launch in 2014) to sports leagues offering season packages for
Internet distribution to film studios launching their own services -
the online distribution model is only going to increase in
popularity.
Rather than claiming limited impact, the CRTC should embrace the
trend by concluding that the services are a boon to both consumers
and content creators consistent with its policy mandate that does
not require regulatory change or protection for established Canadian
broadcasters.
For consumers, the benefits are obvious with more choice, greater
convenience, and lower prices.
Creators also benefit from the proliferation of these services by
virtue of the heightened competition for their content. In years
past, the competitive landscape in Canada was limited to a handful
of broadcasting organizations. The entry of new competitors means
there will be a larger ecosystem of distributors, intermediaries,
and original producers all vying for enough content to make a
compelling offering to consumers.
The established players unsurprisingly view the new entrants as a
threat since they offer competitive content at a fraction of the
price of a typical cable or satellite bill, increase acquisition
costs, and free consumers from being locked into a small number of
service providers.
Broadcasters and some content creator groups may be comfortable with
a highly regulated system that provides a steady stream of revenue,
but the new environment creates a more competitive landscape and the
promise of increased demand for new creative works. Viewed in that
light, the shift toward a robust online video market should be
welcomed by the CRTC with open arms, not viewed warily as a threat
in need of regulatory intervention.
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Last month, the University
of Ottawa Press published The
Copyright Pentalogy: How the Supreme Court of Canada Shook the
Foundations of Canadian Copyright Law, an effort by many of
Canada's leading copyright scholars to begin the process of
examining the long-term implications of the copyright pentalogy.
As I've noted in previous posts, the book is available for purchase and
is also available as a free
download under a Creative Commons licence. The book can be downloaded
in its entirety or each of the 14 chapters can be downloaded
individually.
The book includes two articles on technological neutrality, whose
inclusion as a foundational principle of Canadian copyright was a
landmark aspect of the copyright pentalogy. The message from the Court
is clear: copyright law should not stand in the way of technological
progress and potentially impede the opportunities for greater access
afforded by the Internet through the imposition of additional fees or
restrictive rules that create extra user costs. Viewed in this light,
technological neutrality as a principle within Canadian copyright may
have the same dramatic effects on the law as the articulation of users’
rights did in 2004.
Read More ...
Carys Craig opens the technological neutrality part with a critical
assessment of the significance of the principle and its
potential to guide future development of copyright law and policy in
Canada. Craig's chapter examines the various meanings that can be
attached to technological neutrality, as a principle of both
regulation and statutory interpretation. Craig offers a strong
endorsement of technological neutrality as a guiding principle for
Canadian copyright, arguing that its justification can be found in
the oft-referenced need for balance in copyright. Her chapter
emphasizes the importance of thinking of technological neutrality in
a functional sense with the goal of shaping copyright norms that
treat technologies in a roughly equivalent fashion in order to
preserve the copyright balance in the digital environment.
Greg Hagen's discussion
of technological neutrality considers its potential application to
contentious copyright policy issues. For example, Hagen argues that
the principle of technological neutrality can be used to
create new exceptions to the prohibition on circumventing
technological protection measures (TPMs, often referred to as
"digital locks") and to strike down some prohibitions (which make
user rights subject to not circumventing a TPM) on the basis of a
conflict with the rule of law. Hagen notes that anti-circumvention
legislation favours incumbents over new market rivals, raising
concerns about whether such rules meet the technological neutrality
principle articulated by the Court. Indeed, Hagen suggests that
courts should be empowered to establish new exceptions to the
anti-circumvention rules in order to preserve technological
neutrality.
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As the future of the proposed Canada - European Union Trade
Agreement becomes increasingly uncertain - the EU has been
unwilling to compromise on the remaining contentious issues
leaving the Canadian government with a deal that offers limited
benefits and significant costs - the Trans-Pacific Partnership
Agreement (TPP) is likely to emerge as the government's new top
trade priority. The TPP has rapidly become of the world's most significant trade
negotiations, with participants that include the United States,
Australia, Mexico, Malaysia, New Zealand, Vietnam, Japan, and
Canada. There is a veil of secrecy associated with the TPP,
however, as participants are required to sign a confidentiality
agreement as a condition of entry into the talks. Despite
those efforts, there have been occasional leaks of draft text that
indicate the deal could require major changes to Canadian rules on
investment, intellectual property, cultural protection,
procurement, and agriculture.
My weekly technology law column (Toronto
Star version, homepage
version) notes the Canadian government has adopted several
measures to guard against leaks by departmental officials.
According to documents obtained under the Access to Information
Act, a November 2012 email to government officials noted that
their access to TPP texts was conditioned on "Secret" level
clearance, an acknowledgement that all texts are watermarked and
can be traced back to the source, and confirmation that no sharing
within government is permitted without prior approval.
Read More ...
While the government tries to stop potential leaks, the newly
obtained government documents reveal that the Department of Foreign
Affairs and International Trade has established a secret insider
group with some companies and industry associations granted access
to consultations as well as opportunities to learn more about the
agreement and Canada's negotiating position.
Those documents indicate that the first secret industry consultation
occurred weeks before Canada was formally included in the TPP
negotiations in a November 2012 consultation with telecommunications
providers. All participants were required to sign non-disclosure
agreements.
Soon after, the circle of insiders expanded with the formation of a
TPP Consultation Group created as part of the trade talks in New
Zealand in December 2012. Representatives from groups and companies
such as Bombardier, the Canadian Manufactures and Exporters,
Canadian Agri-Food Trade Alliance, and the Canadian Steel Producers
Association all signed a confidentiality and non-disclosure
agreement that granted access to "certain sensitive information of
the Department concerning or related to the TPP negotiations."
This is not the first time DFAIT has tried to establish a secret
insiders group that is granted preferential access to proposed
treaty information not otherwise available to the public. During the
Anti-Counterfeiting Trade Agreement negotiations, the department planned for
a similar insider group - called a Trade Advisory Group - that
initially included representatives from the music, movie, software,
and pharmaceutical industries. The plan was scuttled only
after the department's intention became public.
While the need for business insight as part of trade talks is
understandable, the two-tier approach raises serious concerns about
the lack of transparency associated with Canada's global trade
strategy. As the Canada - EU Trade Agreement has begun to founder,
Canadian officials have become increasingly tight-lipped about the
specific concerns associated with the agreement. By contrast,
European officials regularly update both elected officials and the
general public. In fact, Europe has become the primary source for
information about where Canada stands in the negotiations.
The creation of a secret TPP insider group suggests that the
government is shying away from public consultation and scrutiny of
an agreement that could have a transformative effect on dozens of
sectors. With TPP negotiations set resume in Lima, Peru in less than
two weeks, Canada should be increasing efforts to gain public
confidence in the talks by adopting a more transparent approach.
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Industry Minister Christian Paradis appeared before the Standing
Committee on Industry, Science and Technology last week and was
asked what he thought Canadians would say about wireless pricing.
Paradis instead indicated what he would tell them:
I would tell them that when we compare with our peers, we are
in the middle-average, we dropped down by almost 20% and this is
a work in progress. We will continue. We are dedicated to have a
fourth player and we will do whatever we can in terms of policy
to achieve this. Frankly, so far time gave us reason.
If this is a work-in-progress, is the government prepared to do
more? Apparently it is, as Paradis also told the committee:
When you talk about the roaming and the tower
sharing, we announced broader measures, and if we have to
intervene more we will.
paradis, wireless Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday May 07, 2013 |
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Last week the University of Ottawa Press published The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law,
an effort by many of Canada's leading copyright scholars to begin the
process of examining the long-term implications of the copyright
pentalogy. The book is available for purchase and is also available as a
free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually.
The first section of the book features three
chapters focused on important administrative law questions about the
standard of review as well as an attempt to place the Supreme Court's
copyright jurisprudence within a larger context. With all five cases
originating with the Copyright Board of Canada, the interplay between
the Copyright Board and Canada’s appellate courts is at issue throughout
the five cases, with two decisions - Rogers Communications Inc. v
Society of Composers, Authors and Music Publishers of Canada and Alberta
(Education) both specifically discussing standard of review issues.
Read More ...
Graham Reynolds provides a powerful endorsement of the Court’s
decisions in his chapter, Of
Reasonableness, Fairness and the Public Interest: Judicial Review
of Copyright Decisions in Canada's Copyright Pentalogy. He
argues that by failing to adopt a broad, liberal approach to fair
dealing in Alberta(Education), the Copyright Board fell outside the
range of acceptable outcomes. Therefore, as a matter of law, it was
not open to the Copyright Board to reach the decision it did.
Given that conclusion, Reynolds maintains that Abella J applied a
reasonableness standard of review in a manner consistent with prior
cases.
The implications of Reynolds’ chapter extend to future fair dealing
cases, as he notes that "one conclusion that we can draw from
Alberta (Education) is that fairness (in the context of fair
dealing) is not as discretionary a concept as it appears to be.
Alberta (Education) and Bell clarify that the purpose of the
Copyright Act requires a broad, liberal approach to fairness. By
implication, then, fairness is not broad and open-ended; rather, it
is infused with certain expectations with respect to the way in
which it is to be applied (namely, in a large and liberal manner)."
Paul Daly is more critical of the administrative law implications of
the decisions in his chapter, Courts
and Copyright: Some Thoughts on Standard of Review, warning
that there is a risk of confusion for lower courts. Daly is
particularly critical of the Court’s refusal to accord deference to
the Copyright Board. He argues that the Copyright Board is far more
than a rate setting tribunal. Rather, it is the body "best
positioned to identify and develop the underlying principles of the
Act."
Daly's chapter also considers the administrative law implications of
the decisions beyond intellectual property. He notes that lawyers
are likely to try to extend the administrative law findings beyond
intellectual property and, in so doing, will undermine the principle
of deference in administrative law decisions.
Margaret Ann Wilkinson attempts to place the copyright pentalogy
within the broader context of the Court’s jurisprudence in her
chapter, The
Context of the Supreme Court's Copyright Cases. She notes that
copyright has assumed an increasingly important role within the
Court’s docket, yet there has been relatively little scholarly
attention paid to how copyright fits within the larger jurisprudence
of the Court.
Wilkinson’s study brings together the copyright pentalogy and the
five other copyright cases rendered over the past decade:
Théberge (2002), CCH (2004), the Tariff 22 decision (2004),
Robertson (2006), and the Toblerone decision (2007). Wilkinson
traces the judges participating in these decisions, noting that
there has been a steady evolution of which judges have
participated. Further, there are no discernable patterns among
the common and civil law judges. Wilkinson identifies the most
active Supreme Court justices on copyright, with Abella J having
written or co-written reasons for all but one copyright-related case
since she joined the Court in 2004.
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Copyright cases typically only reach the Supreme Court of Canada once
every few years, ensuring that each case is carefully parsed and
analyzed. As readers of this blog know, on July 12, 2012, the Supreme
Court issued rulings on five copyright cases in a single day, an
unprecedented tally that shook the very foundations of copyright law in
Canada. In fact, with the decisions coming just weeks after the
Canadian government passed long-awaited copyright reform legislation,
Canadian copyright law experienced a seismic shift that will take years
to sort out.
I am delighted to report that this week the University of Ottawa Press published The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law,
an effort by many of Canada's leading copyright scholars to begin the
process of examining the long-term implications of the copyright
pentalogy. The book is available for purchase and is also available as a
free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually.
This is the first of a new collection from the UOP on law, technology
and society (I am pleased to serve as the collection editor) that will
be part of the UOP's open access collection.
This book features fourteen articles on copyright written by independent
scholars from coast to coast. The diversity of contributors provides a
rich view the copyright pentalogy, with analysis of the standard of
review of copyright decisions, fair dealing, technological neutrality,
the scope of copyright law, and the implications of the decisions for
copyright collective management.
Read More ...
While I am honoured to have served as editor (and to contribute my
own work on the shift from fair dealing to fair use in
Canada), each contributor was granted total freedom to address
whatever aspects of the decisions they saw fit. There was no
editorial attempt to prescribe a particular outcome or perspective.
Indeed, the contributors differ in their views of the decisions and
their support for the Court’s analysis and conclusions.
Contributions are grouped into five parts. Part one features
three chapters on standard of review and the courts. Part two
examines the fair dealing implications of the copyright pentalogy,
with five chapters on the evolution of fair dealing and its likely
interpretation in the years ahead. Part three contains two
chapters on technological neutrality, which the Court established as
a foundational principle of copyright law. The scope of copyright is
assessed in part four with two chapters that canvass the exclusive
rights under the copyright and the establishment of new "right"
associated with user generated content. Part five features two
chapters on copyright collective management and its future in the
aftermath of the Court’s decisions. I'll be writing more about the
individual contributions in the days ahead and will provide more
information on the plans for a conference on the copyright pentalogy
being planned for the fall.
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As Canadians focused last week on the aftermath of the Boston Marathon
bombing and the RCMP arrests of two men accused of plotting to attack
Via Rail, the largest sustained series of privacy breaches in Canadian
history was uncovered but attracted only limited attention. Canadians
have faced high profile data breaches in the past - Winners/HomeSense
and the CIBC were both at the centre of serious breaches several years
ago - but last week, the federal government revealed that it may
represent the biggest risk to the privacy of millions of Canadians as
some government departments have suffered breaches virtually every 48
hours.
The revelations came as a result of questions from NDP MP Charlie Angus,
who sought information on data, information or privacy breaches in all
government departments from 2002 to 2012. The resulting documentation
is stunning in its breadth.
My weekly technology column (Toronto Star version, homepage version) notes that virtually every major government department has sustained breaches, with
the majority occurring over the past five years (many did not retain
records dating back to 2002). In numerous instances, the Privacy
Commissioner of Canada was not advised of the breach.
Read More ...
Some of the most vulnerable departments are those that host the most
sensitive information. For example, Citizenship and Immigration
Canada suffered 161 breaches in 2012 - more than three per week -
affecting hundreds of people. The department only disclosed the
breaches to the Privacy Commissioner of Canada on five occasions.
Human Resources and Skills Development Canada famously suffered a
massive breach last year - 588,384 individuals were affected - but
less well known is that the department has had thousands of other
breaches over the past few years. In 2007, a breach affected 28,651
people, yet the Privacy Commissioner of Canada was not informed and
the department is unsure of whether the breach resulted in criminal
activity.
Virtually no department has been immune to security breaches with
nearly 100,000 individuals affected by breaches at Agriculture and
Agri-Food Canada since 2008, almost 5,000 individuals hit at
Fisheries Canada with no reporting to the Privacy Commissioner of
Canada, and just under 200 breaches at the RCMP affecting an unknown
number of people.
If a similar situation occurred involving a major Canadian bank,
retailer, or telecom company, there would be an immediate outcry for
tougher rules on mandatory disclosure of security breaches. Yet the
federal government plays by different rules, with no liability and
no legal requirements to disclose the breaches.
Successive federal privacy commissioners have urged the government
to reform the badly outdated Privacy Act to at least hold government
to the same privacy standard that it expects from the private
sector. But those calls for reform have been repeatedly ignored.
Most recently, Privacy Commissioner of Canada Jennifer Stoddart
identified twelve seemingly uncontroversial reforms, including
strengthening annual reporting requirements by government
departments, introducing a provision for proper security safeguards
for the protection of personal information, and creating legislated
security breach notification requirements. None of the
recommendations have been implemented.
In fact, Canadian privacy failures dot the legislative landscape.
Bill C-12, the Canadian private sector privacy bill intended to
implement reforms that date back to hearings conducted in 2006 lies
dormant in the House of Commons. A review of the private sector
privacy law that was required by law in 2011 has seemingly been
forgotten. Anti-spam legislation passed in 2010 and touted as a key
part of the government's cybercrime strategy is stuck as Industry
Minister Christian Paradis dithers on the applicable regulations.
No institution has greater access to the personal information of
Canadians than the federal government. The public entrusts it to
keep their information secure and to take all appropriate action
should a security breach occur. The latest revelations indicate that
the failure to live up to that trust is spread across virtually all
government departments and to the political leaders that have failed
to introduce much-needed legislative privacy safeguards.
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The Copyright Board of Canada has released a decision
in which it admits to palpable error that resulted in a hugely inflated
tariff. The case involved a tariff for SODRAC for reproduction of music
works in cinematographic works for private use of for theatrical
exhibition. The Canadian Association of Film Distributors and Exporters
had proposed a tiered tariff approach of a maximum of 2 cents per copy
containing 30 minutes of music or more (less music would result in a
lower tariff). The Copyright Board mistakenly established a tariff of
three cents per copy, mistakenly treating three tiers as three cents. As
the Board now notes:
CAFDE was seeking a rate of 2 cents per DVD copy containing over
30 minutes of SODRAC music; the Board's interpretation leads to
royalties that are 15 times higher or even more.
While SODRAC argued that the Board could not correct its error, the Board concluded that it could noting
that this resulted in palpable error. Moreover, since the erroneous
Board decision actually resulted in higher tariffs than those even
requested by SODRAC, it also concluded that procedural fairness was
breached. The Board has now suspended the tariff and advised that will issue a new decision in the future.
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Jesse Brown had an interesting post yesterday that raised concerns about the prospect that the government might
use mounting fears over cyber-bullying to re-start their failed
lawful access legislation. While it is important to remain vigilant
about the possibility of the re-emergence of Internet surveillance
legislation, I think a more important signal suggests the bill really is
dead (at least until after the 2015 election).
First, Bill C-30
actually did include a provision that could arguably be used to help address
cyber-bullying. It wasn't the provisions involving privacy and
surveillance, but rather the expansion of a Criminal Code provision on
harassment. Section 372(3) currently provides:
Every one who, without lawful excuse and with intent to harass any
person, makes or causes to be made repeated telephone calls to that
person is guilty of an offence punishable on summary conviction.
The limitation to harassing phone calls would seemingly exclude
instances of cyber-bullying. Bill C-30 would have made provision
technology neutral:
Read More ...
Everyone commits an offence who, without lawful excuse and
with intent to harass a person, repeatedly communicates, or
causes repeated communications to be made, with them by a means
of telecommunication.
It is therefore possible that we could see this provision
re-surface without bringing back the surveillance provisions that
raised concern across the country.
More notably, the government recently dropped lawful access from
its national cyber-security strategy. The 2010
Cyber-Security Strategy telegraphed the intent to bring
forward lawful access legislation with a commitment to introduce a
bill:
- Requiring Internet service providers to maintain intercept
capable systems, so that law enforcement agencies can execute
judicially authorized interceptions;
- Requiring Internet service providers to provide police with
basic customer identification data, as this information is
essential to combatting online crimes that occur in real time,
such as child sexual abuse
Yet earlier this month, the government released its Action
Plan 2010-2015 for the Cyber-Security Strategy. It
removed all references related to lawful access including the
commitment to legislation involving Internet service providers.
Given that the document originates with Public Safety - the most
ardent supporter of lawful access within the government - the
removal of surveillance language provides a strong signal that it
is not part of the legislative plan for the foreseeable future.
cyber-bullying, cyber-security, lawful access Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday April 26, 2013 |
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