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

Internet Radio May Stream North to Canada

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the legal rules surrounding Internet radio. Internet radio consists of several types of "stations" including conventional radio stations that simulcast their signal on the Internet, community and college radio stations that use the Internet to extend their signals from small communities to the entire world, and Internet-only stations that broadcast exclusively online. The Internet-only services are particularly intriguing as they include niche webcasters focused on content not found on mainstream AM/FM stations as well as customizable services such as Pandora and Last.fm, which help users identify new music personalized to their tastes.

Despite their popularity, there is growing fear that a recent U.S. royalty decision could effectively shut down thousands of webcasting services. The U.S. Copyright Royalty Board recently established a new royalty scheme that dramatically increases the fees that webcasters will be required to pay to stream music online.

Given the concern about the future viability of Internet radio in the U.S., there has been mounting speculation that some webcasters may consider setting up shop in Canada, where the U.S. rates do not apply. For example, Mercora, a service that allows individuals to launch their own webcasts, has established a Canadian site that falls outside U.S. regulatory and royalty rules.

Webcasters considering a move to Canada will find that the legal framework for Internet radio trades costs for complexity. There are two main areas of concern from a Canadian perspective – broadcast regulation and copyright fees.

April 9, 2007 — 10 comments — Columns

Thinking Outside the Canadian Copyright Box

The Hill Times this week features my special opinion piece on copyright issues (Hill Times version (sub req), homepage version). The column calls attention to Bruce Lehman's recent acknowledgement that "our Clinton administration policies didn't work out very well." Lehman followed the criticism of U.S. policy by issuing a challenge to Canada, urging policy makers and political leaders to think outside the box on future reform. Lehman argued that Canada was well-positioned to experiment with new approaches consistent with international copyright law and I add that there are some obvious differences between Canada and the U.S. including our trade differences (copyright exporter vs. importer) and the success of the Canadian music market (faster digital download sales growth, more online music sellers on a per capita basis).

Given the Canadian marketplace realities and the Lehman recommendation to chart our own course on copyright, how might Industry Minister Maxime Bernier and Canadian Heritage Minister Bev Oda respond? I point to three possibilities.

April 4, 2007 — 2 comments — Columns

Internet Video, Internet Regulation, and Canadian Content

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the growing push from the Canadian broadcasting community to revisit the CRTC's 1999 New Media decision, in which Canada's broadcasting regulator took a hands-off approach to the Internet. The support for greater regulation is often couched in Canadian content terms, but I argue that the current changes have the potential to dramatically alter Canadian content production from one mandated by government regulation to one mandated by market survival.

The issue began to percolate last June, when Canadian Heritage Minister Bev Oda asked the CRTC to conduct a six-month consultation on the effects of changing technology on the radio and television industries. The CRTC report, which was quietly released in mid-December, went almost unnoticed, yet submissions from broadcasters, copyright collectives, and labour unions all point to an increased regulatory role for the CRTC.

The underlying theme of many stakeholder submissions is that unregulated new media represents a threat to the current regulated Canadian content model.

April 2, 2007 — 7 comments — Columns