Columns

Verner’s Challenge

The recent decision to shift Bev Oda out of the Canadian Heritage portfolio was one of the cabinet shuffle's worst kept secrets. While the current conventional wisdom is that Oda's replacement – Quebec City MP Josée Verner – will be a stronger voice for culture around the cabinet table, my technology law column this week (Toronto Star version, homepage version) argues that a change in Minister may not be enough. While Oda had her shortcomings, the reality may be that the problem lies less with the identity of the Minister of Canadian Heritage and more with the department itself.

Few doubt the importance of the cultural sector from both an economic and social policy perspective, yet that status is not reflected in the Department of Canadian Heritage, which has gradually morphed primarily into a granting agency for various cultural initiatives. Increased funding for festivals, films, museums, and other culture industry programs may be worthwhile, however, the problem with the grant approach is that it has locked Canadian Heritage into the status quo at a time of dramatic change.

August 27, 2007 — 6 comments — Columns

A Digital Economy Blueprint For the New Industry Minister

Jim Prentice, Canada's new Industry Minister, has been on the job for less than a week, yet his appointment has already sent a buzz through the business community. With a member of Prime Minister Stephen Harper's inner circle now at the helm, promoting Canada's global economic competitiveness promises to become a core priority on the government's fall agenda. While some political commentators maintain that the issue rarely translates into voter support, my weekly Law Bytes column (Ottawa Citizen version, homepage version) argues that the good news for Prentice is that reforms focusing on digital issues represent both good policy and smart politics. By prioritizing three issues – communication, copyright, and consumer confidence – he has the opportunity to establish a forward-looking framework that can serve as a model for other countries and provide a payoff at the ballot box.

On the communication front, analysts are divided on whether recent deregulation will result in reduced prices for consumers; however, there is near-universal agreement that deregulation alone is not enough.

August 21, 2007 — 2 comments — Columns

Ipod Levy May Yet Face The Music

My weekly Law Bytes column (Toronto Star version, Ottawa Citizen version, homepage version) focuses on last month's Copyright Board decision that re-opens the door to placing a levy of up to $75 on iPods as part of the private copying levy. I note that the case may create a sense of déjà vu, since it marks the second time that the Canadian Private Copying Collective, the collective that has pocketed more than $150 million from the levy since 2000, has sought to include iPods within the levy system. It first introduced an iPod levy in 2003, only to have the Federal Court of Appeal strike it down as the court declared that "it is for Parliament to decide whether digital audio recorders such as MP3 players are to be brought within the class of items that can be levied. . .as [the law] now reads, there is no authority for certifying a levy on such devices or the memory embedded therein."

Notwithstanding the Court's unambiguous language, the CPCC reintroduced the iPod levy earlier this year, arguing that the MP3 player comments were "obiter"(a legal reference to a passing remark that does not form a necessary part of the court's decision). Canadian retailers and storage media companies unsurprisingly challenged that interpretation, leading to last month's ruling that sided with the CPCC. The Copyright Board did not mince words, suggesting that the levy could also be applied to cellphones and personal computers, and warning that excluding the iPod from the levy system would "instantly makes the conduct of millions of Canadians illegal, and even possibly criminal."

The decision will presumably be appealed, virtually guaranteeing years of litigation that promises to divert millions of dollars earmarked for artists to lawyers instead. While the legal challenges are important, the political repercussions carry greater significance since they may lead to dramatic changes to both the levy and the Copyright Board.

August 6, 2007 — 4 comments — Columns

Dell Case Sets Standard for Online Contracts

My weekly Law Bytes column (Toronto Star version, The Tyee version, homepage version) examines the recent Supreme Court of Canada decision involving Dell Computer, online contracting, and mandatory arbitration clauses. Late on a Friday afternoon in April 2003, Dell Computer's Canadian website featured a pair of erroneous prices for the Axim, the company's handheld computer. Rather than listing the two versions of the device correctly at $379 and $549, the site indicated that the price was $89 and $118. Dell blocked access to the pages the following day, however, the mistakes remained accessible throughout the weekend via a direct hyperlink.

Dell typically sold about three Axims each weekend, yet on this particular April weekend, 354 Quebec-based consumers placed 509 orders. Olivier Dumoulin was among those consumers and when Dell refused to honour the mistaken price, he joined forces with a Quebec-based consumer group to launch a class action lawsuit against the company. Dell tried to block the suit, arguing that its consumer contract provided that all disputes were to be resolved by arbitration.

The Dell case wound its way through the Canadian court system, concluding with a Supreme Court of Canada decision last month. Quebec trial and appellate courts both sided with Dumoulin, ruling that the arbitration clause was not enforceable and that the consumer class action could proceed. The Supreme Court overturned those decisions, concluding that the arbitration clause was enforceable and that the use of a hyperlink was sufficient. Dell unsurprisingly welcomed the decision, maintaining that the ability to use arbitration "will lead to the fair and efficient resolution of cases for consumers and business alike." Consumer groups were furious, stating that the decision marked "a dark day for online shoppers in Canada.”

Yet a closer examination of the decision and the current state of e-commerce in Canada suggests that neither side is right.

July 30, 2007 — 7 comments — Columns