Columns

Copyright Consultation Provides Blueprint for Reform

Forgotten amidst the focus on ACTA over the past two weeks, was a recent column (HT PDF version, homepage version) I wrote for the Hill Times on the lessons that can be drawn from this summer's copyright consultation. The piece appears as part of a special section on copyright that included an interview with Industry Minister Tony Clement, Charlie Angus, Howard Knopf, Pina D'Agostino, and Simon Doyle (amont others). I note the government is still in the midst of posting all the submissions, but with thousands now online, it is not too early to begin drawing some lessons.

What does the consultation teach us? There are at least eight conclusions of note:

November 17, 2009 — 11 comments — Columns

Canadian Telco Ownership Rules From By-Gone Era

Corporate structures and loan agreements are rarely the stuff of public interest, yet, as my weekly technology column notes (Toronto Star version, homepage version) last month they attracted considerable attention in a case involving Globalive, a new wireless company vying to shake up Canada’s telecommunications industry. Operating as Wind Mobile, the company paid hundreds of millions of dollars in 2008 to scoop up spectrum to enable it to operate as a new national wireless carrier.

Bell Canada, Telus Corp., and Rogers Communications, the big three incumbent carriers, unsurprisingly opposed the new rival. First they lobbied against a set-aside of spectrum for new entrants. When that failed, they argued Globalive failed to comply with the Telecommunications Act's foreign control restrictions. Last month, the Canadian Radio-television and Telecommunications Commission agreed. While Industry Canada previously concluded the company met the Canadian control requirements for the purposes of the Radiocommunications Act when it bid for spectrum, the CRTC concluded that its ownership and control structure do not meet the legal requirements to operate as a wireless carrier.

The commission identified a number of changes that will be needed to comply with the law and Globalive says it is evaluating its options. The first option is presumably for the federal cabinet to overrule the CRTC. Last week, Industry Minister Tony Clement gave Canada's telecom players until Wednesday to provide their views on the issue as he conducts a pre-cabinet review. A decision may be weeks away, but the process puts a much bigger question into play: Will the Globalive case become the catalyst for the elimination of telecom foreign control restrictions?

November 16, 2009 — 22 comments — Columns

ACTA Threatens Made-in-Canada Copyright Policy

Last week Canadian officials travelled to Seoul for the latest round of closed-door negotiations on an international treaty called the Anti-Counterfeiting Trade Agreement (ACTA). Battling commercial counterfeiting would seem like a good idea, but leaks have revealed that ACTA – which has been conducted with unprecedented secrecy – is really about copyright, rather than counterfeiting.

My weekly technology law column (Toronto Star version, homepage version) notes that from the moment the talks began last year, observers noted the approach was far different from virtually any other international treaty negotiation. Rather than negotiating in an international venue such as the United Nations and opening the door to any interested countries, ACTA partners consisted of a small group of countries (Canada, United States, European Union, Japan, Korea, Australia, New Zealand, Mexico, Morocco, and Singapore) meeting in secret and opposed broadening the process. The substance of the treaty was also accorded the highest level of secrecy. Draft documents were not released to the public and even the locations of negotiations were often kept under wraps. In fact, the U.S. government refused to disclose information about the treaty on national security grounds.

November 10, 2009 — 76 comments — Columns

Consumer Choice Holds The Key To Solving Fee-For-Carriage Fight

Today is the deadline for submitting comments on the fee-for-carriage issue (you can do so directly at the CRTC's website) and I wade in with my views in this week's technology law column (Toronto Star version, homepage version). I note that for the past two months, Canadians have been subjected to a non-stop marketing campaign pitting two deep-pocketed industries – broadcasters and broadcast distributors – against each other. Television and radio commercials, full-page newspaper advertisements, websites and Twitter posts all seek to convince the public that new fees for local television signals are, depending on your perspective, either a TV tax or crucial funding to save local television.

Broadcasters claim some local TV stations will close if they do not receive millions in additional fees from cable and satellite companies as compensation for distributing their signal. Cable and satellite companies leave little doubt they will pass along any new fees – possibly as much as $10 per month per subscriber – to their customers. The additional fees inevitably will not come from the bottom lines of cable and satellite companies, but rather from the pockets of consumers.

While the reaction for many Canadians might be sensibly to tune out the entire mess, politicians and regulators will still be left seeking a solution. In fact, some politicians have pledged to support local television, but also promised to avoid new consumer costs. Can these two positions be reconciled?

Perhaps.

The answer may lie in giving consumers more choice, by allowing them to pay only for the channels they want – regardless of whether they are local, foreign, or specialty (such as CNN or movie networks).

November 2, 2009 — 41 comments — Columns

Net Neutrality in Canada Still a Work in Progress

The release last week of the Canadian Radio-television and Telecommunications Commission's report on Internet traffic management – known as the net neutrality decision – attracted national attention. Canadians, Internet service providers, and politicians debated whether the regulator had struck the right balance in addressing how ISPs manage Internet traffic. While some headlines seemed to suggest that the CRTC has given Canada's ISPs the green light to do as they please, my weekly technology law column (Toronto Star version, homepage version) argues the reality is that the decision establishes several notable requirements and restrictions, but leaves the door open for further action from the government.

First, the commission adopted a new test to determine reasonable traffic management practices. Where a consumer complains, ISPs will be required to describe their practices, demonstrate their necessity, and establish that they discriminate as little as possible. The CRTC added that targeting specific applications or protocols may warrant investigation and slowing down time-sensitive traffic likely violates current Canadian law.

Second, the commission rejected arguments that the market would ensure ISPs provide adequate disclosure on how they manage their networks. Instead, it mandated full disclosure of traffic management practices, including information on when they occur, which applications are affected, and their impact on Internet speeds.

Third, the CRTC banned the use of personal information obtained through deep-packet inspection for anything other than traffic management purposes. By also prohibiting the disclosure of such information, the commission ensured that inspecting user traffic cannot be parlayed into marketing opportunities.

These conditions ensure that traffic management is not a free-for-all. The days of ISPs arguing they can do whatever they please on their networks – as some intimated during the summer hearing – are over.

October 26, 2009 — 26 comments — Columns