Columns

Copyright Permission Has No Place in this House

My weekly Law Bytes column (Toronto Star version, homepage version) examines the restrictions on using political clips, such as debates from the House of Commons, for non-commercial purposes. A recent incident in the U.S. involving Nancy Pelosi sparked considerable discussion about whether it was appropriate for any private broadcaster to maintain copyright control over the public discussion and debates of elected officials. It is a debate that I argue is sorely needed in Canada given the current restrictive framework and the proliferation of political parody and criticism videos that regularly appear on video sharing sites such as YouTube.

In the U.S., C-Span now permits non-commercial copying, sharing, and posting of its video on the Internet, with attribution. More recently, similar questions have been raised in the U.S. about the permission needed to copy, share, and post video stemming from Presidential debates. Several Presidential candidates, including Barack Obama, John Edwards, and Christopher Dodd, have called on the U.S. television networks to make debate footage freely available for non-commercial uses. Last week, CNN became the first broadcaster to do so.

While the U.S. appears to be moving rapidly toward facilitating this emerging form of political speech, Canadians face more onerous restrictions.

May 14, 2007 — 3 comments — Columns

Lawsuits Put Online Free Speech At Risk

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the defamation lawsuits launched in British Columbia by Wayne Crookes against a who's who of the Internet, including Yahoo!, MySpace, and Wikipedia. Those companies are accused of defaming Crookes not by virtue of anything they have said, but rather by permitting their users to post or link to articles that are allegedly defamatory.

The lawsuits could prove to be critically important to the Internet in Canada, because they cast the net of liability far wider than just the initial posters. Indeed, the lawsuits seek to hold accountable sites and services that host the articles, feature comments about the articles, include hyperlinks to the articles, fail to actively monitor their content to ensure that allegedly defamatory articles are not reposted after being removed, and even those that implement the domain name registrations of sites that host the articles.

The common link with all of these targets is that none are directly responsible for alleged defamation. Rather, the Crookes lawsuits maintain that Internet intermediaries should be held equally responsible for such content.

April 30, 2007 — 18 comments — Columns

U.S. Copyright Report More Rhetoric Than Reality

My weekly Law Bytes column (Toronto Star version, homepage version, Ottawa Citizen version) discusses this week's release of the USTR's Special 301 Report. This year, it is a virtual certainty that Canada will receive special attention, with the U.S. claiming that the country has neglected to address critical issues and suggesting that it is rapidly emerging as a piracy haven. I focus on three issues likely to generate criticism in the Special 301 report – the fact that Canada has not ratified the World Intellectual Property Organization's Internet treaties, extended the term of copyright by an additional 20 years, or introduced anti-camcording legislation designed to stem movie piracy.

Notwithstanding the pressure on Canada to act on these issues, even one-time U.S. supporters are beginning to admit that these policies are open to doubt. Last month, Bruce Lehman, who served as the Assistant Secretary of Commerce in the Clinton Administration where he was the chief architect of the WIPO Internet treaties, acknowledged that "our Clinton administration policies didn't work out very well." Meanwhile, Marybeth Peters, the U.S. Registrar of Copyrights has noted that the U.S. extension of copyright was a "big mistake," and the President of the U.S. National Theater Owners Association has advised his members that notwithstanding the introduction of anti-camcording laws, unauthorized camcording in the U.S. is on the rise.

Not only are the policies suspect, but the USTR report should be seen for what it is – a biased analysis of Canadian law supported by a well-orchestrated lobby effort. Since the mid-1990s, the USTR has placed intellectual property protection at the very top of its priority list. As a result, dozens of countries have entered into trade agreements with the U.S. in which they undertake to implement U.S. style intellectual property protections.

Canada has not faced similar trade pressures – the North American Free Trade Agreement pre-dates the shift in USTR priorities – yet it has not been spared intense U.S. lobbying.

April 23, 2007 — 1 comment — Columns

Rogers and Net Neutrality

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the Rogers traffic shaping issue and the resulting impact on consumer rights, competition, and non-P2P applications. If you read my original posting and the many comments that followed, the column covers similar terrain. I therefore think it might be more useful to respond to an interesting posting from Matt Roberts on the Rogers issue. Roberts confirms the Rogers shaping (as does Mark Evans in a posting that refers to it as bandwidth management, a distinction without a difference in my view) but then takes me to task for wrapping it into the net neutrality debate.

The post raises an interesting and important question – is throttling/traffic shaping a net neutrality issue? I should note that regardless of the answer, I believe there is no question that there are problems with the current Rogers approach. The lack of transparency, the misleading service claims, and the inclusion of bandwidth caps that are rendered difficult to achieve all point to an issue that should attract the attention of regulatory agencies (and perhaps class action lawyers).

As for whether there is a net neutrality problem, that likely depends on your definition of net neutrality.

April 16, 2007 — 26 comments — Columns