Columns

How the U.S. Got Its Canadian Copyright Bill

My weekly technology law column (Toronto Star version, homepage version) examines the role that U.S. pressure played leading up to the introduction of Bill C-61 last week. I argue that the bill is the result of an intense public and private campaign waged by the U.S. government to pressure Canada into following its much-criticized digital copyright model. The U.S. pressure has intensified in recent years, particularly since there is a growing international trend toward greater copyright flexibility with countries such as Japan, New Zealand, and Israel either implementing or considering more flexible copyright standards.

The public campaign was obvious. U.S. Ambassador to Canada David Wilkins was outspoken on the copyright issue, characterizing Canadian copyright law as the weakest in the G7 (despite the World Economic Forum ranking it ahead of the U.S.). The U.S. Trade Representatives Office (USTR) made Canada a fixture on its Special 301 Watch list, an annual compilation of countries that the U.S. believes have sub-standard intellectual property laws. The full list contains nearly 50 countries accounting for 4.4 billion people or approximately 70 percent of the world's population. Most prominently, last year U.S. Senators Dianne Feinstein and John Cornyn, along with California Governor Arnold Schwarzenegger, escalated the rhetoric on Canadian movie piracy, leading to legislative reform that took just three weeks to complete.

The private campaign was even more important.

June 16, 2008 — 33 comments — Columns

Copyright Bill’s Fine Print Makes For a Disturbing Read

This morning I run a special column (Toronto Star version, Vancouver Sun version, Ottawa Citizen version, homepage version) on Bill C-61. Based largely on my initial post, I note that in 2004, the Supreme Court of Canada issued a landmark copyright decision in a battle between the Law Society of Upper Canada, the Ontario legal bar association, and CCH Canadian, a leading legal publisher. The court was faced with a dispute over an old technology – photocopying in a law library – and in a unanimous decision it ruled that the underlying purpose of copyright law is to serve the public interest. That interest, reasoned Chief Justice Beverly McLachlin, is best served by balancing both user rights and creator rights.

Yesterday Industry Minister Jim Prentice and Canadian Heritage Minister Josee Verner delivered what amounts to a stinging rebuke to the Supreme Court's copyright vision of public interest and balance. After months of internal discussions (though precious little public consultation), the government unveiled its much-anticipated copyright reform bill. Casting aside the concerns of major business, education, and consumer groups, the bill seeks to dramatically tilt Canadian law toward greater enforcement and restrictions on the use of digital content, leading Liberal Industry critic Scott Brison to warn that it could result in a "police state."

June 13, 2008 — 13 comments — Columns

Government Should Lift Veil on ACTA Secrecy

My weekly technology law column (Toronto Star version, homepage version) focuses on the Anti-Counterfeiting Trade Agreement (ACTA), which was shrouded in secrecy until a leaked summary of the agreement appeared on the Internet last month, and which has sparked widespread opposition as Canadians worry about the prospect of a trade deal that could lead to invasive searches of personal computers and increased surveillance of online activities. Last week, Canadian negotiators huddled with representatives from countries such as the United States, European Union, and Japan at the U.S. Mission in Geneva to continue the negotiations.

While documents obtained under the Access to Information Act reveal internal ACTA discussions as early as 2006, the trade negotiations only came to the Canadian public's attention last fall when International Trade Minister David Emerson revealed the government's intention to participate in the negotiations. Since the announcement, the Canadian government has been among the most secretive of all ACTA negotiating partners. The Department of Foreign Affairs conducted a public consultation on the treaty in April; however, the government revealed little about either the timing or substance of the agreement. By comparison, Australia launched a public consultation on the treaty before committing to participate in the ACTA talks.

Fears about the ACTA have spilled into the political arena as NDP MP Charlie Angus last week voiced concerns about its effects during Question Period in the House of Commons and Toronto-area Liberal MP Bob Rae blogged that it "augurs a ridiculously intrusive national and international apparatus to police practices that are as common as eating and breathing." With another round of talks set for next month in Japan, the government should use the opportunity to pressure its trading partners to lift the veil of ACTA secrecy. Trade negotiators may prefer to remain outside of the spotlight, yet greater transparency is desperately needed.

June 9, 2008 — 7 comments — Columns

Digital Advocacy Comes to Parliament Hill

Last week, hundreds of Canadians descended on Parliament Hill in Ottawa for a public rally in support of net neutrality, a contentious issue that focuses on the need for Internet service providers (ISPs) to treat all content and applications in an equal, non-discriminatory manner. The event succeeded in attracting politicians from two major political parties, labour leaders, independent ISPs, and individuals concerned with the Internet in Canada. My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) notes that while it is tempting to view the rally as an anomaly, it is more accurately seen as just the latest in a series of advocacy actions around the world that illustrate both how digital issues are rapidly moving into the policy mainstream and how the Internet can be used to mobilize offline advocacy.

June 3, 2008 — 4 comments — Columns

Canadians Stuck With Analog Rights in a Digital World

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) notes that earlier this month, some fans of the NBC television programs American Gladiators and Medium found themselves unable to digitally record the shows on their personal computers. The reason for the blocked recordings raises important technical and legal questions about the rights of consumers to "time shift" television programs in the digital era. The blocked recordings affected people that record television programs on their personal computers using the Microsoft Windows Vista Media Centre. Most people are unaware that Microsoft has inserted a feature that allows a broadcaster or content owner to stop the digital recording of a show by triggering a "broadcast flag" that specifies its preference that the show not be recorded. When the user tries to record it, Microsoft’s software recognizes the flag and issues a warning that the program cannot be recorded.

May 28, 2008 — 10 comments — Columns