Telecom by yum9me (CC BY-NC-ND 2.0) https://flic.kr/p/53jSy4
The centerpiece of Canada’s 2012 digital copyright reforms was the legal implementation of the “notice-and-notice” system that seeks to balance the interests of copyright holders, the privacy rights of Internet users, and the legal obligations of Internet service providers (ISPs). The law makes it easy for copyright owners to send infringement notices to ISPs, who are legally required to forward the notifications to their subscribers. The personal information of subscribers is not disclosed to the copyright owner.
Despite the promise of the notice-and-notice system, it has been misused virtually from the moment it took effect with copyright owners exploiting a loophole in the law by sending settlement demands within the notices.
My weekly technology law column (Toronto Star version, homepage version) notes that the government has tried to warn recipients that they need not settle – the Office of Consumer Affairs advises that there are no obligations on a subscriber that receives a notice and that getting a notice does not necessarily mean you will be sued – yet many subscribers panic when they receive notifications and promptly pay hundreds or thousands of dollars.
Bell’s defeat this week at the Federal Court of Appeal over its MobileTV service marked the second high profile regulatory loss in recent months for Canada’s largest communications company. Last month, the government rejected Bell’s cabinet appeal of a CRTC decision on broadband infrastructure. The CRTC ruling means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis.
Bell’s appeal (and accompanying lobbying effort) was premised on the notion that CRTC regulation would force the company to reconsider its fibre investment. Indeed, its cabinet appeal stated:
In the fall of 2013, Ben Klass, a graduate student in telecommunications, filed a complaint with the CRTC over how Bell approach to its Mobile TV product. Klass noted that Bell was offering a $5 per month mobile TV service that allowed users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap. By comparison, users accessing the same online video through a third-party service such as Netflix would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap.
In January 2015, the CRTC released its decision in the case, siding with Klass. The Commission expressed concern that the service “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.” While Bell argued that the mobile TV service was subject to broadcast rather than telecom regulation, the CRTC ruled that mobile television services effectively invoked both broadcast and telecom regulation, since a data connection was required to access the service.
The ability to record television programs is a feature that most consumers take for granted today, but when the Sony Betamax was first introduced in the 1970s, it revolutionized television and sparked high profile lawsuits by the major Hollywood studios who wanted to block its availability. The battle between Universal Studios and Sony ultimately made its way to the U.S. Supreme Court, which ruled that Sony was not liable for contributing to copyright infringement since its product had substantial non-infringing uses.
My weekly technology law column (Toronto Star version, homepage version) notes that the battle between established players and distributors of disruptive technologies has since played out many times in courtrooms and legislatures around the world. From the introduction of the portable MP3 player (which the recording industry tried to stop in a 1999 case) to disputes over the availability of virtual private network services, judges and policy makers often return to the U.S. Supreme Court’s recognition that stopping the distribution of new technologies merely because they are capable of infringing copyrights would create an enormous barrier to new products and services that have many different uses.
Privacy Commissioner of Canada Daniel Therrien was in the news this week as he expressed concern with the evasiveness of Canada’s spy agencies and the ongoing refusal of some of Canada’s telecom companies (namely Bell) to issue transparency reports. I’ll have more to say about privacy and government agencies in my technology law column next week, but on the issue of telecom transparency reports, I believe that Therrien already has the necessary legal mandate to act now. Therrien urged all telecom companies to release transparency reports, noting:
“I think Canadians are telling us, first of all, that they would much prefer that data be shared from telcos to government only with a warrant, with a court authorization. But when that does not happen, Canadians expect that there be transparency…frankly, if there’s not more progress I will continue to call for legislation on this issue.”
I wrote about why Canada’s telecom transparency reporting still falls short late last month, emphasizing that a non-binding approach to transparency reporting has been a failure.