Each April, the United States issues the Special 301 Report, which examines the intellectual property laws of its main trading partners. For the past 15 years, Canada has been included on the watch list of countries the U.S. believes need reform. As the U.S. prepares its 2010 edition, for the first time it invited the public to provide their comments on the process and the link between intellectual property and trade policy. My weekly technology law column (Toronto Star version, homepage version) notes that among the hundreds of submissions, one from the Computer and Communications Industry Association stands out as critically important to Canada.
Columns
Canadian ISPs Fall Short In Meeting Net Neutrality Requirements
Last fall, the Canadian Radio-television and Telecommunications Commission issued its much-anticipated Internet traffic management ruling, better known as the net neutrality decision. The case attracted national interest as the CRTC established several key requirements for Canada’s Internet providers.
These included new transparency obligations that forced ISPs to disclose their network management practices, such as why the practices were introduced, who will be affected, when it will occur, and how it will impact users' Internet experiences (down to the specific impact on speeds). The CRTC also opened the door to complaints about network management practices by establishing a test that any harm to users be as little as reasonably possible.
Several months later, Canada's ISPs have had ample time to comply with the new requirements, yet my weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) reviews the policies from the biggest ISPs – including Bell Canada, Rogers Communications Inc., Shaw Communications Inc., Telus, Cogeco Inc., and Groupe Vidéotron – and reveals a decidedly mixed bag.
Ontario Court Rules Consumers Can’t Click Away Class Action Rights
In 2004, Ian Andrews purchased a Dell laptop computer for $1,700. About 2 1/12 years later, the computer began to malfunction, periodically shutting down unexpectedly. Stuck with a problem computer that was past the standard warranty period, Andrews complained to Dell. The computer giant responded that the online contract governing the initial purchase required him to resolve the dispute by arbitration.
Andrews recognized this was not a realistic approach, later stating that as a university student he was not in a financial position to retain counsel to support an arbitration claim. Instead, he chose a different course of action, suing the company as part of a class action lawsuit that brought together thousands of consumers experiencing similar problems.
Dell challenged the class action suit, but as my weekly technology law column (Toronto Star version, homepage version) notes, last month the Ontario Court of Appeal sided with Andrews, ruling that it could proceed.
NFB Unreels Online Smash Hits
In recent years, Canadians have become increasingly accustomed to hearing about Internet success stories elsewhere with fewer examples of homegrown initiatives. However, as my weekly technology law column (Toronto Star version, homepage version) discusses, an unlikely Canadian online video success has emerged recently that has not received its due – the National Film Board of Canada’s Screening Room.
Estimating The Cost of a Three-Strikes and You’re Out System
Canadian officials travel to Guadalajara, Mexico this week to resume negotiations on the still-secret Anti-Counterfeiting Trade Agreement. The discussion is likely to turn to the prospect of supporting three-strikes and you’re out systems that could result in thousands of people losing access to the Internet based on three allegations of copyright infringement. Leaked ACTA documents indicate that encouraging the adoption of three-strikes – often euphemistically described as "graduated response" for the way Internet providers gradually send increasingly threatening warnings to subscribers – has been proposed for possible inclusion in the treaty.
My weekly technology law column (Toronto Star version, homepage version) notes that while supporters claim that three-strikes is garnering increasing international acceptance, the truth is implementation in many countries is a mixed bag. Countries such as Germany and Spain have rejected it, acknowledging criticisms that loss of Internet access for up to a year for an entire household is a disproportionate punishment for unproven, non-commercial infringement.
Those countries that have ventured forward have faced formidable barriers. New Zealand withdrew a three-strikes proposal in the face of public protests (a much watered-down version was floated at the end of last year), the UK's proposal has been hit with hundreds of proposed amendments at the House of Lords, and France's adventure with three-strikes has included initial defeat in the French National Assembly, a Constitutional Court ruling that the plan was unconstitutional, and delayed implementation due to privacy concerns from the country's data protection commissioner.
Much of the three-strikes debate has focused on its impact on Internet users, yet the price of establishing such systems have scarcely been discussed. That may be changing due to the UK government's own estimates on the likely costs borne by Internet providers and taxpayers in establishing and maintaining a three-strikes system.
Recent Posts
Canadian Government Caves on Digital Services Tax After Years of Dismissing the Risks of Trade Retaliation 
The Law Bytes Podcast, Episode 238: David Fraser on Why Bill C-2’s Lawful Access Powers May Put Canadians’ Digital Security At Risk 
Ignoring the Warning Signs: Why Did the Canadian Government Dismiss the Trade Risks of a Digital Services Tax? 
Why Bill C-2 Faces a Likely Constitutional Challenge By Placing Solicitor-Client Privilege at Risk 
The Law Bytes Podcast, Episode 237: A Conversation with Jason Woywada of BCFIPA on Political Party Privacy and Bill C-4
