Columns

CRTC Message to Broadcasters: Regulatory Games Coming to an End

Last week, the Canadian Radio-television and Telecommunications Commission announced that it is terminating the Local Programming Improvement Fund (LPIF). The fund, which was established in 2008, funneled over $300 million to broadcasters to support the creation of local programming. The decision caught the industry by surprise with the CBC calling it “astonishing” and Bell Media saying it is a “major concern.”

Yet the end of the LPIF is only the latest in a series of moves that unravel recent regulatory efforts to provide broadcasters with increased financial support. My weekly technology law column (Toronto Star version, homepage version) notes the courts and the Commission have sent a clear signal that broadcasters should focus on marketplace success, not manipulating the regulatory system.

July 24, 2012 — 8 comments — Columns

Supreme Court Shakes the Foundations of Canadian Copyright Law

I have posted several pieces on the recent Supreme Court of Canada copyright decisions (an immediate overview, a piece on why Canada has shifted to fair use, an analysis of the inclusion of a technological neutrality principle, and a discussion on the implication for Access Copyright). My weekly technology law column (Toronto Star version, homepage version) also focused on the decision. It noted that copyright cases only reach the Supreme Court of Canada once every few years, ensuring that each case is carefully parsed and analyzed. Last week, the court issued rulings on five copyright cases in a single day, an unprecedented tally that will keep copyright experts busy for many months to come.

While the initial coverage unsurprisingly focused on the specific outcomes for the litigants, including wins for Apple (no fees for song previews on services such as iTunes), the entertainment software industry (no additional payment for music included in downloaded video games), and the education community (copying materials for instructional purposes may qualify as fair dealing), the bigger story are three broad principles that lie at the heart of the court’s decisions.

July 20, 2012 — 19 comments — Columns

ACTA Lives: How the EU & Canada Are Using CETA as Backdoor Mechanism To Revive ACTA

Last week, the European Parliament voted overwhelmingly to reject ACTA, striking a major blow to the hopes of supporters who envisioned a landmark agreement that would set a new standard for intellectual property rights enforcement. The European Commission, which negotiates trade deals such as ACTA on behalf of the European Union, has vowed to revive the badly damaged agreement. Its most high-profile mov e has been to ask the European Court of Justice to rule on ACTA’s compatibility with fundamental European freedoms with the hope that a favourable ruling could allow the European Parliament to reconsider the issue.

While the court referral has attracted the lion share of attention, my weekly technology law column (Toronto Star version, homepage version) reports that there is an alternate secret strategy in which Canada plays a key role. According to recently leaked documents, the EU plans to use the Canada – EU Trade Agreement (CETA), which is nearing its final stages of negotiation, as a backdoor mechanism to implement the ACTA provisions. [UPDATE 7/10: new post on why the concern over ACTA in CETA is warranted] [UPDATE 7/11: EC responds by saying ACTA ISP provisions removed from CETA. Appears likely most of remaining provisions remain]

The CETA IP chapter has already attracted attention due to EU pharmaceutical patent demands that could add billions to provincial health care costs, but the bigger story may be that the same chapter features a near word-for-word replica of ACTA. According to the leaked document, dated February 2012, Canada and the EU have already agreed to incorporate many of the ACTA enforcement provisions into CETA, including the rules on general obligations on enforcement, preserving evidence, damages, injunctions, and border measure rules. One of these provisions even specifically references ACTA. A comparison table of ACTA and the leaked CETA chapter is posted below. has already attracted attention due to EU pharmaceutical patent demands that could add billions to provincial health care costs, but the bigger story may be that the same chapter features a near word-for-word replica of ACTA. According to the leaked document, dated February 2012, Canada and the EU have already agreed to incorporate many of the ACTA enforcement provisions into CETA, including the rules on general obligations on enforcement, preserving evidence, damages, injunctions, and border measure rules. One of these provisions even specifically references ACTA. A comparison table of ACTA and the leaked CETA chapter is posted below.

July 9, 2012 — 44 comments — Columns

All the News That’s Fit To Post and Link: Federal Court Clears Up Legal Risks

Free Dominion is a Canadian-based political news website where users regularly post articles or link to online content for the purposes of political debate. On January 10, 2008, an eleven-paragraph column by National Post columnist Jonathan Kay was posted to the site. When the Post complained in April 2010, the column was replaced with shorter excerpt that included the same headline along with 3 full paragraphs and one half-paragraph. A month later, a site user posted a link to a photograph that was posted on the photographer’s website. The photograph itself was not posted as only a link was used.

These postings and links were not particularly unusual – similar actions occur millions of times every day – yet soon after, Free Dominion was hit with a copyright infringement lawsuit claiming the posting and the link violated the Post and photographer’s copyright.

My weekly technology law column (Toronto Star version, homepage version) notes that last week, the Federal Court of Canada issued its ruling, dismissing both claims (along with a claim over the posting of a second article for which the limitation period to sue had expired). The decision has enormous implications for Internet users, news organizations, and free speech in Canada as it removes much of the legal uncertainty surrounding sharing information online.

July 3, 2012 — 10 comments — Columns

What’s Behind Canada’s Entry to the Trans-Pacific Partnership Talks?

Last week, U.S. President Barack Obama formally extended an invitation to Canada to join the Trans Pacific Partnership negotiations, a proposed trade deal that includes the U.S., Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam (Mexico was also added last week). Supporters have lauded the TPP as potentially the world’s most important trade pact and the Canadian government spent months crossing the globe to lobby for an invitation.

Yet dig beneath the heady promises and my weekly technology law column (homepage version, Toronto Star version) notes that the benefits for Canada are hard to identify. The price of admission was very steep – Canada appears to have agreed to conditions that grant it second-tier status – and the economic benefits from improved access to TPP economies are likely to be relatively minor since we already have free trade agreements with four of the ten participants.

Given those conditions, why aggressively pursue entry into the negotiations?

June 28, 2012 — 10 comments — Columns