Appeared in the Toronto Star on February 21, 2016 as Secrecy Around $30M Ontario Music Fund Strikes Wrong Notes Earlier this month, the British Columbia government unveiled a new $15 million music fund to support the local music industry. The fund matches a similar Ontario initiative that has doled out […]
Articles by: Michael Geist
The Trouble With the TPP, Day 35: Gambling With Provincial Regulation
Last year, the Quebec government introduced legislation that would require Internet service providers to block access to unlicensed online gambling sites. It provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The Quebec bill, which is currently before the provincial legislature, is a terrible idea that has been opposed by ISPs and consumer groups. The government views this initiative as a revenue enhancing measure because it wants to direct gamblers to its own Espacejeux, the Loto-Québec run online gaming site. The mandated blocking legislation is unprecedented in Canada and if enacted, it will surely be subject to legal challenge, including the possibility of a constitutional challenge.
The legal challenge may not be limited to constitutional issues, however. The Quebec bill may also be blocked by the TPP, which may be a good outcome, but raises the question of whether a trade agreement is the right way to dictate provincial laws.
How might the TPP apply to provincial online gambling regulation?
Fairness Confirmed: Copyright Board Deals Another Blow to Access Copyright
In the aftermath of the Supreme Court of Canada’s 2012 copyright pentalogy that strongly affirmed the importance of user’s rights and the need for a broad, liberal interpretation for fair dealing, Access Copyright insisted that the decisions did not mean what they said. While educational groups developed reasonable fair dealing guidelines based on the decisions (along with earlier decisions such as the CCH case and the inclusion of education within the fair dealing purposes in 2012 reforms), Access Copyright argued that the copying required its licence and that fair dealing guidelines based on general percentages could not be used.
Last Friday, the Copyright Board of Canada issued its latest decision on the application of fair dealing to educational copying, providing yet another resounding blow to Access Copyright’s view of copyright. The Board created a tariff for copying in K-12 schools that was a fraction of what the copyright collective had wanted. It initially asked for $15 per full time student. By the time the issues had been fully assessed, the Board granted a tariff of $2.46 per student for 2010-2012 and $2.41 for 2013-2015. That rate is not only far lower than Access Copyright had demanded, but is nearly half of what was previously certified for the period from 2005-2009 (which was set at $4.81). The Board minced no words in explaining the reduction:
The Trouble With the TPP, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage
Price of Entry, one of the early Trouble with the TPP series posts, discussed some of the conditions of entry for Canada into the TPP negotiations. These included the absence of “veto authority”, which meant that Canada could not hold up any chapter if it was the only country opposing a provision. This ultimately had a significant impact on the intellectual property chapter, where Canada had little choice but to cave on several issues.
Conditions of entry were not the only disadvantage faced by the Canadian negotiators. According to an internal email I recently obtained under the Access to Information Act, Canadian officials were aware that they were at a disadvantage relative to the U.S. in the late stages of the negotiations. The email dated July 9, 2015, was sent to Kirsten Hillman, Canada’s lead TPP negotiator, and Christine Hogan, the International Trade Deputy Minister. It notes that the U.S. had cleared access to the full negotiating text for a wide range of advisors, including business groups and public advocates, but infers that Canada had not done the same. It continues:
I hope the political side lets you do something similar or at least hold technical briefings, or the US will effectively drive the narrative and put you at a disadvantage.
The Trouble With the TPP, Day 33: Setting the Rules for a Future Pharmacare Program
Earlier Trouble with the TPP posts focused on the health care implications of the agreement, focusing on patent term extensions, biologics protection, and limits on medical devices and pharma data collection. There is another health-related aspect of the TPP worthy of examination, but it is easy to miss. Chapter 26 of the TPP addresses transparency and anti-corruption, which is not the place you would expect to find provisions with a direct impact on health care. Yet Annex 26-A contains a full section on “transparency and procedural fairness for pharmaceutical products and medical devices.” What does this section do? The key aspect is to establish mandatory requirements for a national pharmacare program:
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