Appeared in the Toronto Star on December 13, 2014 as Government Documents Reveal Telecom Providers Envision Surveillance-Ready Networks After years of failed bills, public debate, and considerable controversy, lawful access legislation received royal assent last week. Public Safety Minister Peter MacKay’s Bill C-13 lumped together measures designed to combat cyberbullying […]
Archive for December, 2014
Supreme Court’s Privacy Streak Comes To End: Split Court Affirms Legality of Warrantless Phone Searches Incident to Arrest
The Supreme Court of Canada issued its decision in R. v. Fearon today, a case involving the legality of a warrantless cellphone search by police during an arrest. Given the court’s strong endorsement of privacy in recent cases such as Spencer, Vu, and Telus, this seemed like a slam dunk. Moreover, the U.S. Supreme Court’s June 2014 decision in Riley, which addressed similar issues and ruled that a warrant is needed to search a phone, further suggested that the court would continue its streak of pro-privacy decisions.
To the surprise of many, a divided court upheld the ability of police to search cellphones without a warrant incident to an arrest. The majority established some conditions, but ultimately ruled that it could navigate the privacy balance by establishing some safeguards with the practice. A strongly worded dissent disagreed, noting the privacy implications of access to cellphones and the need for judicial pre-authorization as the best method of addressing the privacy implications.
Too Little, Too Late?: Access Copyright Finally Acknowledges the Reduced Value of Its Licence
Access Copyright announced a shift in its licensing approach for universities and colleges yesterday, unveiling what it described as “new market-focused services.” Access Copyright CEO Roanie Levy is quoted as saying “we recognize the advances many institutions have made on content dissemination and the centralized management of copyright. We hear you. We are changing.” Indeed, the copyright collective has changed its tune in some important ways.
Less than three years ago, Access Copyright believed that institutions simply could not opt-out of its licence, claiming that an opt-out would amount to “an absolute ban on all copying” since the only possible way to legally copy materials was to pay the collective. Over the past three years, Access Copyright has been proven wrong. The Supreme Court of Canada dismissed all of its key legal arguments in a massive defeat, the government expanded fair dealing with the inclusion of education, universities opted-out of the Access Copyright licence in droves, and dozens adopted fair dealing policies that called into question whether there was much value in the licence at all.
While Access Copyright is still suing York University (more about that below), the collective appears to recognize that the education sector has alternatives, including the enormous expenditures on site licences, open access publishing, fair dealing, public domain works, and individual licences for works not otherwise available. In other words, Access Copyright is an option, not a requirement, and the collective must prove value that extends beyond extolling the size of its repertoire. Rather, it must demonstrate that it offers value for money in an environment where the Supreme Court has emphasized the importance of users’ rights and adopted a liberal, flexible approach to fair dealing.
Why Canada’s Communication Policy Misses the Forest for the Trees
The Canadian Radio-television and Telecommunications Commission wrapped up its third major hearing in as many months last week, focusing on the wholesale market for broadband Internet services. Coming on the heels of the earlier hearings on broadcast television regulation (the “TalkTV” hearing that was highlighted by a showdown with Netflix) and wholesale wireless services, the proceedings followed a familiar script.
The incumbent providers urged the Commission to resist regulating access, claiming a competitive market exists with few barriers to new competitors. Meanwhile, independent Internet providers pointed to their relatively small share of the current broadband market and warned that failure to mandate access for faster fibre connections to the home would effectively eliminate future competition as Canadians gravitate to services offering faster speeds.
While it will take some time for the CRTC to issue its decisions in all three cases (the broadcast decision is expected before the end of the year), it is not too early to declare the entire system broken. The CRTC – Netflix battle prompted many to conclude that the Commission was a relic of the past, unable to adapt to the disruptions facilitated by the Internet. Yet the Commission’s difficulty dealing with the fast-moving changes throughout the communications sector is chiefly the result of an outdated regulatory structure that misses the proverbial forest for the trees.
Why Canada’s Communication Policy Misses the Forest for the Trees
The Canadian Radio-television and Telecommunications Commission wrapped up its third major hearing in as many months this week, focusing on the wholesale market for broadband Internet services. Coming on the heels of the earlier hearings on broadcast television regulation (the “TalkTV” hearing that was highlighted by a showdown with Netflix) […]
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The Law Bytes Podcast, Episode 199: Boris Bytensky on the Criminal Code Reforms in the Online Harms Act 
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The Law Bytes Podcast, Episode 198: Richard Moon on the Return of the Section 13 Hate Speech Provision in the Online Harms Act
