When speaking on Bill C-11 in the House of Commons on Monday, NDP MP Andrew Cash, a musician, noted
that several years ago he traveled to Ottawa to talk copyright together with other musicians such as Brendan Canning from the Broken Social Scene and Steven Page from the Barenaked Ladies. The musicians were part of the Canadian Music Creators Coalition, which brought together some of Canada’s best known musicians. In their submission
to the 2009 national copyright consultation, they said the following about digital locks:
We believe anti-circumvention measures encourage and support the use of digital locks and litigation against music fans. Thus, we oppose the inclusion of such measures in legislative reform. Copyright laws must accommodate the interests of Canadian music creators. We support our fans’ legitimate interests in having a say in how they enjoy our music, and policy decisions should take this into account. Policies that fail to accommodate such interests should be rejected.
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The CRTC yesterday issued a ruling
involving a Telus complaint over Bell’s exclusive rights over NFL and NHL content for its wireless services and its inability to negotiate similar rights for mobile carriage. The Commission found that Bell gave itself an undue preference contrary to its 2009 new media decision
and ordered Bell to take steps to ensure that Telus can access the programming on reasonable terms. While there are dangers of undue preferences in the mobile environment and of unfair behaviour arising from the vertical integration, it is hard to see how this case qualifies.
The CRTC analysis involves a two-step process. First, it considers whether an undertaking has given itself a preference or subjected another person to a disadvantage. If it finds a preference, it moves to a second step to determine whether the preference is undue. Note that the burden of demonstrating that the preference was not undue rests with the undertaking that has granted it.
In this case, the Commission found that Bell granted itself a preference by entering into an exclusive contract for NHL and NFL programming. Note that the NFL programming is not something that Bell produces or otherwise owns. There is also no indication that the Bell’s wireless access to the NFL is linked to similar licenses for its broadcasting properties (Bell says the NFL deal was concluded before its purchase of CTV). If this constitutes a preference, then any exclusive contract will seemingly rise to the level of a preference and the party that enters into it may be faced with the burden of demonstrating that it is not an undue preference (which appears to be precisely what the Commission has in mind).
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ACTRA, the Alliance of Canadian Cinema, Television and Radio Artists, is the union of more than 22,000 professional performers working in English-language recorded media in Canada including TV, film, radio and digital media. I have disagreed in the past with several its positions on copyright reform, including one member calling mashups morally wrong
and a six-part fix
that would remove fair dealing reform. ACTRA’s 2009 national copyright consultation submission
supported the use of digital locks, but also recognized the need for limits on the legal protections associated with them including the need to ensure that exceptions and limitations are not lost:
The choice of whether or not to use a TPM in connection with controlling access to a copyright protected work or which restricts copyright protected acts rests with rightsholders. Some will choose to use them, others will not. In accordance with the WIPO Treaties, rightsholders should have recourse against persons who deliberately circumvent their TPMs. By the same token, users who have legal access to a work should not be prevented by TPMs from availing themselves of statutory exceptions or limitations. Moreover, legal protection for TPMs should be subject to privacy, interoperability, and encryption research considerations, for example.
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NDP MP and party leadership candidate Romeo Saganash posts a piece in the Huffington Post that expresses concern with the digital lock rules in Bill C-11.
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Early next year the government will introduce lawful access legislation
featuring new information disclosure requirements for Internet providers, the installation of mandated surveillance technologies, and creation of new police powers. Public Safety Minister Vic Toews, the chief proponent of the new law, has defended the plans, stating
that opponents are putting “the rights of child pornographers and organized crime ahead of the rights of law-abiding citizens.”
My weekly technology law column (Toronto Star version, homepage version) notes that Toews’ stance in the face of widespread criticism from the privacy community and opposition parties is likely to be accompanied by a series of shaky justifications for the legislation.
For example, the bill will mandate the disclosure of Internet provider customer information without court oversight – that is, without a warrant. Under current privacy laws, providers may voluntarily disclose customer information but are not required to do so. Toews has argued that the mandated information is akin to “phone book data” that is typically publicly available without restriction.
Yet the legislation extends far beyond phone book information by requiring the disclosure of eleven different items including customer name, address, phone number, email address, Internet protocol address, and a series of device identification numbers. Many Canadian courts have recognized the privacy interests associated with this data.
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