Columns

Battle over ACTA Heats Up As DFAIT Consults, U.S. Promotes Global DMCA

My weekly technology law column (Toronto Star version, homepage version) begins by noting that next week, the Department of Foreign Affairs will conduct one of the stranger consultations in recent memory.  Officials have invited roughly 70 stakeholder groups to discuss an international intellectual property treaty that the U.S. regards as a national security secret and about which the only public substantive information has come from a series of unofficial leaks.

Since then-Minister David Emerson announced Canada’s participation in the Anti-Counterfeiting Trade Agreement negotiations in October 2007, the ACTA has been dogged by controversy over the near-total lack of transparency.  Early negotiations were held in secret locations with each participating country (Canada, the U.S., the European Union, Japan, and Australia among them) offering nearly-identical cryptic press releases that did little more than fuel public concern.

The participating countries conducted four major negotiation sessions in 2008 and though the first session of 2009 was postponed at the request of the U.S. (which was busy transitioning to a new president), the negotiations are set to resume later this spring. When they do, negotiators will face two key challenges. 

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March 30, 2009 — 5 comments — Columns

Songwriters Bid To Legalize File Sharing Gets a Rewrite

In November 2007, the Songwriters Association of Canada shocked the music industry and many Canadians by proposing the full legalization of music file sharing.  The SAC proposal was based on the premise that file sharing was not going away, that lawsuits against file sharers do more harm than good, and that the continued emphasis on using digital locks to control copying has been a complete failure. In the view of thousands of Canadian songwriters, the better way forward was to encourage music sharing by monetizing it.  The SAC proposal envisioned a levy (five dollars per month was floated as a possibility) that would be used to compensate creators for the sharing.  In return, Canadians would be entitled to freely share music for non-commercial purposes.

The reaction to the SAC proposal was generally critical.  The recording industry rejected it out-of-hand, arguing that it violated international copyright law.  Consumer groups were also skeptical, noting that a mandatory universal levy would result in payments by non-music sharers, who would effectively subsidize those sharing music. Notwithstanding the criticism, the SAC persisted.  My weekly technology law column (Toronto Star version, homepage version) notes that last week, it quietly unveiled a revised version of the proposal at a public forum on copyright in Toronto.  The new version, which addresses many of these earlier criticisms, is far more promising and there are indications that the SAC may be joined by other creator organizations in pursuit of a legalization strategy.

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March 23, 2009 — 32 comments — Columns

Canadian Privacy Rights Buried in the Fine Print

Scott McNealy, the former CEO of Sun Microsystems, has achieved considerable notoriety for having warned Internet users ten years ago that "you have no privacy, get over it." Recent headlines suggest that the Ontario courts have adopted those sentiments, as two recent decisions involving the disclosure of subscriber information by Internet service providers confirmed that revealing personal information to law enforcement without a warrant is permitted under Canadian privacy law.

While some view these cases as providing conclusive evidence that Canadians enjoy little privacy in identifying data such as customer name and address information, my weekly technology law column (Toronto Star version, homepage version) argues that a closer look at the decisions and industry practices reveal that the issue is not entirely settled.

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March 17, 2009 — 9 comments — Columns

Storm Clouds Ahead for Canadian Wireless World

Public frustration over the state of the Canadian wireless industry has generally focused on consumer-oriented concerns including pricey data plans, misleading system access fees, and text message charge policies.  Given the consumer focus, the effect on Canadian business is rarely discussed.  My weekly technology law column (Toronto Star version, homepage version) argues that that is set to change as one of Canada’s leading media companies has stepped forward with explosive allegations about how the wireless industry is engaged in practices that stifle innovation by privileging access or controlling content on their networks.

The claims can be found in a recent submission to the Canadian Radio-television and Telecommunications Commission by Pelmorex Media, the owner of the Weather Network in Canada.  While Pelmorex is not a household name, the Weather Network's websites rank at the top of Canadian media websites for online visitors.

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March 9, 2009 — 14 comments — Columns

Little New In New Media Hearings

The Canadian Radio-television and Telecommunications Commission new media hearings take a break over the next few days before concluding with a steady stream of appearances by Internet service providers, who are certain to argue next week against the imposition of a new ISP tax to fund the creation of Canadian new media.  My technology law column (Toronto Star version, homepage version) this week argues that the break is much needed, as the past two weeks have been huge disappointment with submissions short on specifics, long on rhetoric, and filled with inconsistencies.

While there is plenty of blame to go around, criticism must start with the CRTC, since it set the tone for the hearings with a series of conditions that make little sense.  The Commission tried to limit the hearings to "new media broadcasting," explicitly excluding issues such as net neutrality and the potential regulation of user generated and non-commercial content.

Yet each of these distinctions cause the entire new media hearing edifice to crumble. 

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March 2, 2009 — 6 comments — Columns
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