Columns

U.S. List Unfairly Tarnishes Canada’s Digital Reputation

My weekly technology law column (Toronto Star version, homepage version) focuses on the U.S. decision to elevate Canada to the Priority Watch list. I note that the elevation will undoubtedly heighten pressure for reforms, it also points to the need for the Canadian government to reassess how it manages the Special 301 process and its bilateral relationship with the U.S. on this issue. In previous years, Canadian officials have done little more than express disappointment with the U.S. findings. According to documents obtained under the Access to Information Act, the Minister of Foreign Affairs has been repeatedly advised that "Canada does not recognize the Special 301 process due to its lacking of reliable and objective analysis, and we have raised this issue regularly with the U.S. in our bilateral discussions."

Raising the issue in bilateral discussions may have worked in the past, but this year's report sends a clear signal that more is needed. This year's designation is so unsupportable that Industry Minister Tony Clement and Canadian Heritage Minister James Moore should not hesitate to challenge both the process and the substance of the findings.

May 4, 2009 — 4 comments — Columns

The Untold Story of Do-Not-Call Enforcement (aka Why Killing Do-Not-Call Can’t Come Fast Enough)

Earlier today, I posted on how one of the most significant aspects the anti-spam bill introduced on Friday was not reported or discussed in government briefing materials. Namely, that buried at the very end of the 69-page bill, are provisions that lay the groundwork to kill the National Do-Not-Call list. I noted that the proposed approach is very complicated, but boils down to the government repealing the provisions that establish and govern the do-not-call list. In its place, the Electronic Commerce Protection Act approach of requiring an opt-in would apply, meaning that Canadians would no longer need to register their phone numbers on a do-not-call list.

My weekly technology law column (homepage version, Ottawa Citizen version, Toronto Star version) provides some reasons why that the change cannot come fast enough. The column reports that while misuse of the do-not-call list remains a concern, a review of thousands of pages of internal government documents released under the Access to Information Act reveal that it is only the tip of the iceberg. In addition to lax list distribution policies, the enforcement side of the do-not-call list raises serious alarm bells with the majority of complaints being dismissed as invalid without CRTC investigation, the appearance of a conflict of interest in sorting through complaints, and a regulator that has been content to issue to "warnings" rather than levying the tough penalties contained in the law.

The CRTC documents obtained under Access to Information include a list of companies that have downloaded the do-not-call list. Given the broad exceptions under the law, virtually no charities, survey companies, political parties, or newspapers have acquired it. Instead, real estate agents, car dealers, financial advisors, and lawn care companies dominate the list of over one thousand organizations. Many of those organizations are identifiable, yet there are also over a hundred provincial numbered companies for which little is known, as well as cryptic names such as “My broker office” or “Michele.” It is unclear whether the CRTC invoked further verification before granting access to unknown organizations.

The proliferation of the do-not-call list is certainly disconcerting, but picture that emerges about its enforcement is even more troubling. The documents reveal that the CRTC receives over 20,000 telemarketing complaints each month, many involving the do-not-call list (some complaints may relate to other telecommunications rules that cover automated dialers or curfews).

The initial evaluation of complaints is handled by Bell, which manages the do-not-call list, rather than the CRTC. Bell reviews each complaint and provides a prima facie evaluation of whether it is valid, invalid, or indeterminate (which require further investigation). Despite tens of thousands of complaints, very few have been categorized by Bell as a prima facie violation of the do-not-call list. For example, in January, Bell reported that there were only 42 valid prima facie national do-not-call violations, while 3,033 national do-not-call complaints were ruled invalid (an unknown number of do-not-call complaints were treated as indeterminate).

April 27, 2009 — 11 comments — Columns

Policy Toolkit Nearly Empty In Bid To Support Local TV

This week a steady stream of television and cable executives will appear in Ottawa before the Standing Committee on Canadian Heritage to discuss the "evolution of the television industry in Canada and its impact on local communities." My weekly technology law column (Toronto Star version, homepage version) notes that MPs from all parties will demand to know what companies like Rogers, CTV, and Canwest are prepared to do to ensure that local television broadcasting does not disappear in many smaller and medium sized communities.

The current "crisis" feels new, yet the issues are nearly as old as Canadian broadcasting itself. The economics of Canadian broadcasting have relied on a range of policy support mechanisms that include: lucrative commercial substitution, which lets broadcasters substitute Canadian commercials during the simulcast of popular U.S. programs; market protection that has limited local competition; declining programming commitments that allows broadcasters to fill airtime with cheaper foreign programming; and corporate convergence approvals that have resulted in only a handful of big Canadian broadcasters.

Broadcasters now argue these measures are insufficient and with the latest round of threats to shut down some local stations, MPs will be anxious to identify solutions to keep broadcasters in business. As they grapple with the issue, the MPs would do well to remember that at least three separate issues are often lumped together into the single umbrella issue of local broadcasting.

April 20, 2009 — 18 comments — Columns

Goldstein Introduces Patent Reform Bill To Ease Access To Medicines

For many years, countries such as Canada have avoided the uncomfortable truth that millions are dying in the developing world due partly to legal barriers that render access to medicines unaffordable. In 2003, the World Trade Organization reached agreement designed to facilitate the export of medicines by opening the door to a compulsory licence for developing countries without manufacturing capabilities. Canada became an early adopter of the agreement by reforming the Patent Act to allow the Canadian Commissioner of Patents to issue a compulsory licence to a pharmaceutical company to allow for the manufacture and export of an eligible drug or medical device to an eligible importing country. Titled the Jean Chretien Pledge to Africa Act after the former Prime Minister’s commitment to development support in Africa, the reforms were touted as an illustration of Canadian leadership on development issues.

My weekly technology law column (Toronto Star version, homepage version) notes that several years later, most agree the policy have been a near-total failure. The law has only been used once and the company involved in the process found it so burdensome that it has vowed not to repeat it. Moreover, other countries, including the European Union, the Netherlands, Switzerland, China, India and South Korea, have also implemented the WTO reforms in a manner that leaves the Canadian Access to Medicines Regime (CAMR) looking unduly restrictive and outdated by comparison.

April 14, 2009 — 2 comments — Columns

CIRA At The Crossroads

My weekly technology law column (Toronto Star version, homepage version) picks up on a recent post that reflected on the growing commercial focus of CIRA, the dot-ca authority. I begin by noting that the ten-year anniversary of Government of Canada's letter to CIRA establishing the terms under which the new not-for-profit organization would manage the dot-ca domain name space passed last month without any notice. The Government articulated a vision of the dot-ca domain as a "key public resource" and called on CIRA to act in an open and transparent manner.

More than a million domain name registrations later, many Canadians take the dot-ca for granted. The system works and this bottoms-up creation – it was the (far smaller) Canadian Internet community that worked with the government to develop CIRA – is widely viewed as a success. CIRA has held multiple elections, hosted meetings from coast to coast, eased the prices and complexity of registering domain names, and generally worked to maintain public trust by treating its administration of the dot-ca as a public trust.

While there is much to celebrate, in recent months the organization has shown a troubling yet unmistakable shift toward prioritizing commercial gain over the public interest.

April 6, 2009 — 3 comments — Columns