Columns

Next on the Canadian Copyright Reform Agenda: Clean Up the Mess at the Copyright Board

With the latest phase of Canadian copyright reform now complete, the government may soon turn to the question of what comes next. Given last year’s major legislative overhaul and the landmark series of copyright decisions from the Supreme Court of Canada, significant substantive changes are unlikely to be on the agenda for the foreseeable future.

Instead, my weekly technology law column (Toronto Star version, homepage version) argues that it is time for the government to set its sights on the Copyright Board of Canada, a relatively obscure regulatory body that sets the fees to be paid for the use of copyright works. The Board is largely unknown in public circles, but it has played a pivotal role in establishing the costs associated with private copying (including a one-time iPod levy), educational copying, and the use of music by Canadian broadcasters.

The litany of complaints about the Board has mounted in recent years: the public rarely participates in its activities due to high costs, it moves painfully slowly by only issuing a handful of decisions each year, and its rules encourage copyright collectives and users to establish extreme positions that make market-driven settlements more difficult.

Moreover, over the past ten months, the Supreme Court has ruled that its approach to fair dealing was unreasonable, the Board itself admitted to palpable error in a decision that resulted in a hugely inflated tariff, and it has ignored the will of Parliament in reshaping Canadian copyright law. The Board may keep a steady stream of lawyers and economists busy, but it is time to acknowledge that it is broken.

May 21, 2013 — 3 comments — Columns

Why Creators and Consumers Should Welcome the “Netflix Threat”

The examination of the proposed Bell acquisition of Astral Communications took place last week in Montreal with the Canadian Radio-television and Telecommunications Commission hearing from a wide range of supporters and opponents of a deal that only last year was rejected as contrary to the public interest.

As Bell and Astral sought to defend their plan, a familiar enemy emerged – Netflix. What does a U.S.-based Internet video service with roughly two million Canadian subscribers have to do with a mega-merger of Bell and Astral?

My weekly technology law column (Toronto Star version, homepage version) notes that for the past few years, it has become standard operating procedure at CRTC hearings to ominously point to the Netflix threat. When Internet providers tried to defend usage based billing practices that led to expensive bills and some of the world’s most restrictive data caps, they pointed to the bandwidth threat posed by Netflix. When cultural groups sought to overturn years of CRTC policy that takes a hands-off approach to Internet regulation, they argued that Netflix was a threat that needed to be addressed. So when Bell and Astral seek to merge, they naturally raise the need to respond to Netflix.

May 16, 2013 — 8 comments — Columns

Canadian Government Establishes Two-Tier Approach for Trade Talks: Insiders and Everyone Else

As the future of the proposed Canada – European Union Trade Agreement becomes increasingly uncertain – the EU has been unwilling to compromise on the remaining contentious issues leaving the Canadian government with a deal that offers limited benefits and significant costs – the Trans-Pacific Partnership Agreement (TPP) is likely to emerge as the government’s new top trade priority.

The TPP has rapidly become of the world’s most significant trade negotiations, with participants that include the United States, Australia, Mexico, Malaysia, New Zealand, Vietnam, Japan, and Canada. There is a veil of secrecy associated with the TPP, however, as participants are required to sign a confidentiality agreement as a condition of entry into the talks. Despite those efforts, there have been occasional leaks of draft text that indicate the deal could require major changes to Canadian rules on investment, intellectual property, cultural protection, procurement, and agriculture.

My weekly technology law column (Toronto Star version, homepage version) notes the Canadian government has adopted several measures to guard against leaks by departmental officials. According to documents obtained under the Access to Information Act, a November 2012 email to government officials noted that their access to TPP texts was conditioned on “Secret” level clearance, an acknowledgement that all texts are watermarked and can be traced back to the source, and confirmation that no sharing within government is permitted without prior approval.

May 8, 2013 — 2 comments — Columns

Your Information is Not Secure: Thousands of Government Privacy Breaches Point to Need for Reform

As Canadians focused last week on the aftermath of the Boston Marathon bombing and the RCMP arrests of two men accused of plotting to attack Via Rail, the largest sustained series of privacy breaches in Canadian history was uncovered but attracted only limited attention. Canadians have faced high profile data breaches in the past – Winners/HomeSense and the CIBC were both at the centre of serious breaches several years ago – but last week, the federal government revealed that it may represent the biggest risk to the privacy of millions of Canadians as some government departments have suffered breaches virtually every 48 hours.

The revelations came as a result of questions from NDP MP Charlie Angus, who sought information on data, information or privacy breaches in all government departments from 2002 to 2012. The resulting documentation is stunning in its breadth.

My weekly technology column (Toronto Star version, homepage version) notes that virtually every major government department has sustained breaches, with the majority occurring over the past five years (many did not retain records dating back to 2002). In numerous instances, the Privacy Commissioner of Canada was not advised of the breach.

April 30, 2013 — 8 comments — Columns

CRTC Should Force Broadcasters To “Compete Just Like Any Other Sector”

Last month, Jean-Pierre Blais, the chair of the Canadian Radio-television and Telecommunications Commission, delivered a much-discussed speech at the Canadian Media Production Association’s annual conference. The CMPA is Canada’s leading organization for the production of Canadian film and television programming and Blais’ message was intended to both congratulate and challenge the industry.

On the congratulatory side, Blais noted the Canadian film and television production had a record year in 2012, growing by over $500 million over the prior year, by far the highest total and fastest growth in over a decade. Canadian television production led the way, increasing 21.3 per cent in 2011/12, for a ten-year high of just under $2.6 billion. Most of the increase was due to English-language programming, with fiction production growing by over 41 per cent.

Blais’ challenge came in several forms, but my weekly technology law column (Toronto Star version, homepage version) notes the comment that attracted the most attention was his remark that “under my watch, you will not see a protectionist. I’m a promotionist.” Most observers took the comment to mean that the CRTC will not focus on mechanisms such as Canadian content requirements and foreign restrictions as a means to advance Canadian culture. Rather, with billions being spent on the creation of Canadian programming, it is better to concentrate on marketing and promotion of those works.

Yet there was a second comment that garnered less attention, but that may ultimately prove more important. After encouraging the industry to become more innovative and entrepreneurial, Blais warned “you will need to compete, just like any other sector.”

April 23, 2013 — 3 comments — Columns