Columns

Navigating Canada’s Copyright Conflicts

The Hill Times runs a special op-ed (HT version (sub required), homepage version) I've written on the political challenges the government faces on copyright reform. I note that in a sure sign of an impending throne speech, copyright lobby groups are out in full force calling on the government to prioritize intellectual property protection in its fall legislative agenda. Despite efforts to put forward a united front, however, what is readily apparent to those close to the process is that copyright reform is rife with conflicts that create a significant political risk and require the expenditure of enormous political capital.

The recent revelations about a potential conflict of interest within the Canadian Heritage Copyright Policy Branch are certainly the most obvious manifestation of conflict concerns. Although perceived conflict issues in this area are nothing new, the existence of a personal relationship between the government’s head of copyright policy and Hollywood's top Canadian lobbyist at a time when the government is pursuing a copyright reform bill raises uncomfortable questions about who knew what and when within Canadian Heritage.

Yet focusing exclusively on this form of conflict would be a mistake, since conflicted agendas, policies, and stakeholders present a more treacherous minefield. These include:

October 1, 2007 — 2 comments — Columns

Broadcasting Policy for a World of Abundance

My regular technology law column (Toronto Star version, Ottawa Citizen version, homepage version) focuses on the recent firestorm sparked by the broadcasting reform report commissioned by the CRTC and written by Laurence Dunbar and Christian Leblanc. The Canadian Association of Broadcasters characterized the report's recommendations as an assault on the foundation of Canadian broadcasting. In this instance, the broadcasters are correct. The report is indeed an assault on the regulatory foundation of Canadian broadcasting – one that is long overdue.

Canadian broadcast regulation was designed for a world of scarcity where broadcast spectrum and consumer choice was limited. This led to a highly regulated environment that used various policy levers to shelter Canadian broadcasters from external competition, limited new entrants, and imposed a long list of content requirements and advertising restrictions. As a result, a dizzying array of regulations kept the entry of new broadcast competitors to a minimum, enshrined genre protection so that Canadians were treated to domestic versions of popular channels such as HBO and ESPN, and firmly supported simultaneous substitution, a policy that allows Canadian broadcasters to simulcast U.S. programming but substitute their own advertising.

Yet today's broadcasting environment is no longer one of scarcity, but rather one of near limitless abundance as satellite, digital channels, and the Internet now provide instant access to an unprecedented array of original content.

September 25, 2007 — 1 comment — Columns

Misleading RCMP Data Undermines Counterfeiting Claims

My weekly Law Bytes column (Toronto Star version, Ottawa Citizen version, homepage version) focuses on the growing attention paid to counterfeiting and the use of misleading data as part of the debate. The RCMP has been the single most prominent source for claims about the impact of counterfeiting in Canada since its 2005 Economic Crime Report pegged the counterfeiting cost at between $10 to 30 billion dollars annually. The $30 billion figure has assumed a life of its own with groups lobbying for tougher anti-counterfeiting measures regularly raising it as evidence of the dire need for Canadian action. U.S. Ambassador to Canada David Wilkins cited the figure in a March 2007 speech critical of Canadian law, while the Canadian Anti-Counterfeiting Network, Canada's leading anti-counterfeiting lobby, reported in April that the "RCMP estimates that the cost to the Canadian economy from counterfeiting and piracy is in the billions."

Yet despite the reliance on this figure – the Industry Committee referenced it in its final report – a closer examination reveals that the RCMP data is fatally flawed. Responding to an Access to Information Act request for the sources behind the $30 billion claim, Canada's national police force last week admitted that the figures were based on "open source documents found on the Internet." In other words, the RCMP did not conduct any independent research on the scope or impact of counterfeiting in Canada, but rather merely searched for news stories on the Internet and then stood silent while lobby groups trumpeted the figure before Parliament.

A careful examination of the documents relied upon by the RCMP reveal two sources in particular that appear responsible for the $30 billion claim.

September 18, 2007 — 25 comments — Columns

New CIHR Policy a Victory for Open Access

My weekly technology law column (Toronto Star version, homepage version) focuses on last week's announcement of a new CIHR open access policy. The column touches on many of the issues I raised in my initial blog posting, including the implications for publishers and the mounting pressure on Canada's other granting […]

September 10, 2007 — Comments are Disabled — Columns

Unlocking the Mysteries of Locked Cellphones

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Ynet Hebrew version, BBC version, homepage version) discusses the legal issues surrounding locked cellphones in light of the recent attention focused on the Apple iPhone. The iPhone, like many cellphones in North America, is "locked" to a single carrier. Consumers who want the iPhone must use AT&T since the device contains technical limitations that render it difficult to use on other networks. These limitations are artificial in the sense that there are otherwise no impediments for an iPhone to run on a competing U.S. network such as T-Mobile, a compatible European or Asian network, or on the Rogers network in Canada.

Locked cellphones have become common in North America as carriers claim that they sell "subsidized" phones in return for an exclusive commitment and long-term contract from consumers. While many consumers may like the opportunity to purchase a phone for a fraction of the full retail price, others would presumably prefer the freedom of an "unlocked" cellphone that would allow them to easily switch between carriers. The freedom provided by unlocked cellphones is particularly useful for people who travel, since they can avoid roaming fees by converting their phone into a local phone in most countries by simply inserting a local SIM card. This approach is standard in Europe and Asia, where consumers would not tolerate a market comprised solely of locked cellphones.

While the iPhone may be locked to AT&T, several consumers, including a New Jersey teenager, have uncovered how to unlock their phones. This has unleashed a legal battle pitting companies anxious to offer unlocked versions of the iPhone against AT&T, which has threatened to sue anyone offering unlocking services.

From a policy perspective, it is readily apparent that locked cellphones undermine efforts to encourage greater competition in the marketplace.

September 3, 2007 — 8 comments — Columns