Columns

Is the Competition Bureau Ready to Take on Media Convergence?

Canadian broadcasters and broadcast distributors have pursued a convergence strategy for the past decade that has created one of the world’s most concentrated media markets. Four powerhouses – Bell Media, Rogers, Shaw, and Videotron – have been left standing with those companies now dominating broadcast television, radio, and broadcast distribution from coast to coast.

While it may already be too late, the proposed $3 billion Bell Media – Astral merger may represent the final opportunity to address mounting concerns over the competitive impact of a converged market. My weekly technology law column (Toronto Star version, homepage version) notes the new Bell Media – Astral entity will control approximately 45 per cent of the commercial radio market in Canada along with a dizzying array of television stations, specialty television channels, as well as wireless, satellite, and Internet services.

August 7, 2012 — Comments are Disabled — Columns

Prime Minister’s Privacy Policy Requires a Re-Write

As public concern over Internet privacy has grown in recent years, one of the first responses is invariably to focus on the need for improved disclosure through easily accessible website privacy policies. The policies provide information on how personal information is collected, used, and disclosed to third parties.

While few visitors read the policies from start to finish, it is important for websites to ensure that they are accurate, since misleading statements can lead to liability. My weekly technology law column (Toronto Star version, homepage version) notes the need for accuracy is particularly true if you’re say, the Prime Minister of Canada. Yet a reader recently noticed that the Prime Minister’s Office website may be incorrectly stating its use of cookies, which are small files that may be placed on user’s computer hard drive by a website to monitor usage or identify repeat visitors.

July 31, 2012 — 11 comments — 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