Columns

Opening Up Canada’s Digital Economy Strategy

The federal government’s national consultation on a digital economy strategy is now past the half-way mark having generated a somewhat tepid response so far. My weekly technology law column (Toronto Star version, homepage version) argues the consultation document itself may bear some of the blame for lack of buzz since the government asks many of the right questions, but lacks a clear vision of the principles that would define a Canadian digital strategy.

One missed opportunity was to shine the spotlight on the principle of "openness" as a guiding principle. In recent years, an open approach has found increasing favour for a broad range of technology policy issues and has been incorporated into many strategy documents. For example, New Zealand identified "openness is a central principle of [its] Digital Strategy 2.0."

The consultation document includes a brief reference to open access for government-funded research, but it seemingly ignores the broader potential for a strategy with openness policies as a key foundational principle.

Where might an openness principle make sense?

June 16, 2010 — 9 comments — Columns

B.C. Court Clicks With Internet Advertising Keyword Case

Google has grown to become the world’s leading Internet company based largely on accurate search results, yet its financial success owes much to tiny advertisements that are posted as sponsored links alongside the "organic" search results. The determination of which sponsored links appear on a Google search result page comes in part from a keyword advertising system in which marketers bid on specific words. Whenever a user clicks on the sponsored link, the marketer pays Google the bid amount. Each click may only cost a few pennies, but with millions of clicks every day, the keyword advertising business is a multi-billion dollar business for Google and has been emulated by competitors such as Yahoo and Microsoft.

Keyword advertising has been a huge commercial success fueling many ad-supported websites, but it has not been without legal controversy. The practice has generated a steady stream of cases addressing whether the use of a competitor's keyword raise potential trademark or misleading advertising issues. For example, is Coca-Cola permitted to bid on the Pepsi keyword so that when an Internet user searches for Pepsi they are presented with a sponsored link for Coke?

The issue has been litigated in other countries, but my weekly technology law column (Toronto Star version, homepage version) notes that late last month a B.C. court provided the Canadian perspective for the first time.

June 10, 2010 — 8 comments — Columns

Long-Awaited Copyright Reform Plan Flawed But Fixable

I attended yesterday's C-32 media lockup on behalf of the Toronto Star, who asked for a quick analysis piece of the bill. My column is posted below:

Copyright has long been viewed as one of the government's most difficult and least rewarding policy issues. It attracts passionate views from a wide range of stakeholders, including creators, consumers, businesses, and educators and is the source of significant political pressure from the United States. Opinions are so polarized that legislative reform is seemingly always the last resort that only comes after months of delays.

The latest chapter in the Canadian copyright saga unfolded yesterday as Industry Minister Tony Clement and Canadian Heritage James Moore tabled copyright reform legislation billed as providing both balance and a much-needed modernization of the law.

The bill will require careful study (suggestions that a quick set of summer hearings will provide an effective review should be summarily rejected) but the initial analysis is that there were some serious efforts to find compromise positions on many thorny copyright issues.

June 3, 2010 — 81 comments — Columns

An Unofficial User Guide to This Afternoon’s Copyright Bill

With the copyright bill – Bill C-32 – being introduced this afternoon, it is worth noting that my technology law column last week (Toronto Star version, homepage version) focused on some of the key issues likely to find their way into the bill. The column noted the internal dynamics that led to the bill are by now fairly well known. Industry Minister Tony Clement, emboldened by last summer’s copyright consultation that generated unprecedented public participation, argued for a forward-looking, technology neutral bill with flexibility as a core principle. Canadian Heritage Minister James Moore advocated for a U.S.-style protectionist approach, with priority given to digital locks that can be used to limit copying, access, and marketplace competition.

With the active support of Prime Minister Stephen Harper, Moore won the fight over digital locks and the new bill will feature provisions certain to please the U.S. government and lobby groups. Yet the bill will include far more than just tough legal protection for a digital locks.

This brief unofficial user's guide to the new legislation that focuses on three key issues – fair dealing, Internet provider liability, and digital locks (Internet downloading is unlikely to figure prominently in the bill).

June 2, 2010 — 19 comments — Columns

Security Breach Disclosure Bill Has Bark But No Bite

Last week Industry Minister Tony Clement unveiled two bills touted as important components of the government’s national digital strategy. The Fighting Internet and Wireless Spam Act is a repeat of the anti-spam bill that passed through the House of Commons last year but died after Parliament prorogued. Since the new bill reflects roughly the same compromise that garnered all-party support, it should receive swift passage.

My weekly technology law column (Toronto Star version, homepage version) argues that the second bill, the Safeguarding Canadians' Personal Information Act, is likely to be far more controversial. The bill amends Canada’s existing privacy legislation by establishing new exceptions for businesses and new powers for law enforcement.

June 1, 2010 — 1 comment — Columns