Columns

CRTC Decision Not the Final Word On Net Neutrality

My weekly technology law column (Toronto Star version, homepage version) discusses last week's CRTC decision in the CAIP v. Bell case. Echoing my remarks immediately after the decision, I argue in the column that the decision is not the final word on net neutrality in Canada, but rather the first […]

November 24, 2008 — 6 comments — Columns

“Enhanced” Licence May Enhance Privacy and Security Risks

This week the Ontario legislature will resume debate on Bill 85, proposed legislation that could lead to the creation of an "enhanced drivers licence" in the province (referred to as an EDL). My weekly technology law column (Toronto Star version, homepage version) notes that the introduction of the new licence – which will also be available as a photo card for non-drivers – has received little public attention despite the urgent concerns expressed by privacy commissioners and civil liberties groups. Indeed, barring an unlikely change of plans, the legislation could be passed within a matter of days.

The primary impetus behind the EDL is the increased border security measures between Canada and the United States. As the U.S. increased identity card requirements for entry into the country (passports are now required at most border crossings), government officials in both countries have sought to develop an alternative to the passport. The EDL, which will embed new technologies including a radio frequency identification device (RFID) within the card, is the outcome of that work. While the enhanced card will be optional, it is expected that many residents may pay the extra fee for the EDL. Moreover, Ontarians will not be alone in this regard as other provinces and U.S. states have similar plans. As Ontario moves closer to an EDL with this new legislation, the concern from the privacy and civil liberties communities – who point to three overarching concerns – have continued to mount.

November 17, 2008 — 19 comments — Columns

New Media Requires New Thinking on Cultural Policy

Canadian cultural policy has long relied on two levers to promote the development and market success of Canadian content. First, regulators require broadcasters and cable companies to allocate a portion of their revenues to help support the creation of new Canadian content. Second, that content is granted preferential treatment through minimum "Cancon" requirements for both television and radio broadcasting. My weekly technology law column (Toronto Star version, homepage version) notes that while these approaches may have worked for conventional broadcasting, the big question in the Canadian Radio-television and Telecommunications forthcoming hearings on new media is whether they can be applied to the Internet.

Canadian cultural groups, the biggest proponents (and beneficiaries) of this policy approach argue that similar mechanisms can be adapted to the Internet by requiring Internet service providers to hand over a portion of their subscriber revenues for the creation of new media content. ISPs unsurprisingly oppose the proposal, arguing that an Internet tax is inherently unfair since it forces all subscribers to fund content in which they may have little interest. Moreover, they note that such a scheme may also be illegal since it applies the Broadcasting Act to telecommunications activities.

The CRTC adopted a new Cancon approach for the introduction of satellite radio into the Canadian market and similar creative thinking is needed for the online environment.

November 11, 2008 — 16 comments — Columns

Government Keeps ACTA Consultation Results Under Wraps

Earlier this year, many Canadians were taken aback by reports of a secret trade agreement that conjured up images of iPod-searching border guards and tough new penalties for every day activities. The Anti-Counterfeiting Trade Agreement, currently being negotiated by Canada, the United States, Japan, the European Union, and a handful other countries, generated sufficient public concern such that then-Industry Minister Jim Prentice specifically denied any links between the treaty and proposed new legislation.

While the ACTA debate has largely disappeared from the public radar screen, the negotiations continue. Over the summer, I reported about attempts to establish a private consultation committee composed of industry groups that excluded public interest organizations. The status of the consultation committee remains unknown, but my latest technology law column (Toronto Star version, homepage version) reports on newly obtained documents [13 MB] under the Access to Information Act that provide additional insights into the secretive nature of the negotiations as well as the results of a limited public consultation conducted by the Department of Foreign Affairs in the spring.

The documents confirm that two countries – the United States and Japan – have emerged as the primary supporters and drafters of the treaty. Countries have met three times in recent months to discuss elements of the treaty with those two countries providing draft treaty language to the other participants just prior to the formal meeting. For example, in late May, the U.S. and Japan forwarded draft treaty language on new border measures provisions to the Canadian delegation, two weeks before a round of talks in Washington. According to Australian officials, subsequent meetings in Geneva and Tokyo addressed statutory damages and criminal provisions for unauthorized camcording. The next meeting is set for Brussels in early December with Internet issues on the agenda.

November 3, 2008 — 25 comments — Columns

Canadian Podcasting Royalty Down But Not Out

In the annals of Canadian copyright royalty fights, few can match Tariff 22 for pure stamina and longevity. First introduced in 1995 by SOCAN, thirteen years later the proposal is still the source of much disagreement. Indeed, years after the Supreme Court of Canada dismissed an attempt to implement a tariff on Internet service providers for the music transmitted over their networks, the Copyright Board of Canada issued a new decision on Friday that addressed the prospect of establishing a royalty on hundreds of thousands of websites ranging from social network giants such as Facebook to thousands of Canadian podcasters.

My weekly technology law column (Toronto Star version, homepage version) notes that while Friday's decision is not limited to social networks and podcasters – the decision established royalty rates for, among others, Internet-based radio stations that are deemed to be high users of music (5.3 percent of revenues), electronic games sites (0.8 percent of revenues), and non-commercial radio station webcasts (1.9 percent) – it is the "other sites" category that encompasses everyone from MySpace to a solitary website featuring a small amount of music that will rightly attract the most attention.

October 27, 2008 — 4 comments — Columns