Archive for December, 2013

Toronto and UWO Confirm the Obvious: Access Copyright Licence Provides Little Value for Education

The University of Toronto and the University of Western Ontario, the two Ontario universities that were quick to sign a copyright collective licence with Access Copyright before the conclusion of Bill C-11 and the Supreme Court of Canada’s fair dealing decisions, have announced that starting next year they will no longer operate under a licence from the copyright collective. The moves come after many other prominent Canadian universities operated without an Access Copyright licence, relying instead the millions of dollars being spent on site licences, open access materials, fair dealing, and transactional licensing for specific works that are otherwise unavailable or whose use would not constitute fair dealing.

The fair dealing aspect of the strategy has attracted considerable criticism from Access Copyright and its allies, who implausibly argue that despite multiple Supreme Court of Canada decisions and an expansion of fair dealing by the Canadian government, that there is still much uncertainty about its application. The reality is that a fair dealing consensus has emerged in Canada within the education community that is relatively conservative in scope. For example, the Canadian guidelines speak to the use of 10 percent of a work as fair dealing. By comparison, a recent settlement in Israel between universities and a major publisher identifies 20 percent of a work as fair.

While Access Copyright argued immediately after its release that the 2012 Supreme Court decision left “copyright licensing in the education sector alive and well”, it was obvious that this was just not the case. In fact, Access Copyright warned the Supreme Court that:

December 11, 2013 — 4 comments — News

The Privacy Threats in Bill C-13, Part Two: The Low Threshold for Metadata

My first post on the privacy threats in Bill C-13 focused on the voluntary disclosure of personal information and the complete civil and criminal immunity granted to intermediaries such as ISPs and telecom companies that provide such disclosures. This post focuses on the low threshold the bill establishes for a new “transmission data” warrant and explains why this represents a serious privacy risk.

The bill defines transmission data as data that:

(a) relates to the telecommunication functions of dialling, routing, addressing or signalling;
(b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports â€¨to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication;
(c) does not reveal the substance, meaning or purpose of the communication.

The bill creates a new warrant that allows a judge to order the disclosure of transmission data where there are reasonable grounds to suspect that an offence has been or will be committed, the identification of a device or person involved in the transmission will assist in an investigation, or will help identify a person. The government relies on the fact that this is a warrant with court oversight to support the claim that Canadians should not be concerned by this provision. Yet the reality is that there is reason for concern as the implications of treating metadata as having a low privacy value is enormously troubling.

December 11, 2013 — 4 comments — News

The Trans Pacific Partnership and the Fight Over a Cultural Exception

This week’s leak of country-by-country positions on a Trans Pacific Partnership included a notable reference to the inclusion of a cultural exception. Canada stands with a slight majority in seeking a cultural exception that would presumably exclude the cultural industries (broadcast, audio-visual, music, books, etc.) from the ambit of key TPP provisions such as foreign investment restrictions or other legislated forms of cultural protections. Other supporters of a cultural exception include Australia, New Zealand, Chile, Brunei, Malaysia, and Vietnam. Opponents include the U.S., Peru, Mexico, Singapore, and Japan.

The emergence of the cultural exception issue is interesting because U.S. lobby groups were specifically concerned with the prospect that Canada would pursue an exception if admitted into the TPP negotiations. For example, the IIPA (which represents the major music, movie, and software lobby groups) stated the following in January 2012 with respect to the possible admission of Canada into the TPP:

December 10, 2013 — 2 comments — News

The TPP and Privacy: What Are the Implications of the E-commerce Chapter?

While much of the attention on the Trans Pacific Partnership has focused on the intellectual property chapter, the e-commerce chapter raises potentially significant privacy implications. The details of the e-commerce chapter remain unknown – the chapter has not been leaked as the latest Singapore meeting wrapped up without a deal – but the leaked country-by-country position paper suggests that the participants are fairly close to consensus on at least two privacy related provisions.

December 10, 2013 — Comments are Disabled — News

The U.S. Stands Alone: How the U.S. Is Increasingly Isolated on Intellectual Property Policy

Each April, the U.S. Trade Representative releases the Special 301 report which represents its take on the countries with inadequate intellectual property laws. Inclusion on the report is often framed as an embarrassment as the U.S. seeks to paint those countries as out-of-step with international norms (Canadian officials have rightly dismissed the report as a lobbying document without substantive merit). The latest leaks of country positions on the Trans Pacific Partnership highlight that the opposite is true. It is increasingly the U.S. that is out-of-step with international norms as it seeks to export laws that are widely rejected by most other countries. From its demands for the criminalization of copyright (even in cases of inadvertent infringement) to the prospect of termination of Internet access over allegations of violations, the U.S. approach finds little support among most of its allies. While Canada opposes the U.S. on virtually all remaining IP issues in the TPP, the U.S. is often isolated on each issue, sometimes entirely alone or occasionally supported by one or two other countries.

December 9, 2013 — 12 comments — News