Latest Posts

Super Bowl Tickets by Michael Dorausch (CC BY-SA 2.0) https://flic.kr/p/7CjXzW

Inconsistent Arguments and Questionable Claims: Bell Launches Yet Another Action Over CRTC’s Super Bowl Simsub Ruling

Jean-Pierre Blais’ term as CRTC chair was marked by dramatic changes in how policies were developed and in the substance of the policies themselves. As I wrote on his departure, Blais placed the Internet at the centre of the communications systems and worked to gradually revamp broadcast safeguards in an effort to make the Canadian system more globally competitive. With the appointment of new chair Ian Scott and vice-chair of broadcasting Caroline Simard, the established stakeholders will unsurprisingly test the new leadership to see if a change in approach is on the way. Yesterday, Bell took a major step in that direction as it asked the CRTC to rescind its order banning simultaneous substitution from the Super Bowl broadcast in Canada.

Bell had already filed a legal action, asked the government to intervene in the case, and ramped up lobbying pressure from the U.S., but the government rightly declined to overturn the decision with the case still before the courts. I’ve written extensively about the issue, making the case for why the CRTC got it right (if anything, it did not go far enough as simultaneous substitution has become less relevant as more subscribers cut the cable cord). After the Super Bowl broadcast, I argued that the viewership data largely vindicated the CRTC. Indeed, Bell’s data confirms that it massively over-estimated the impact of the simsub loss. In advance of the broadcast, it forecast a $40 million loss. It now claims an $11 million advertising loss, a fraction of its earlier estimate.

Read more ›

August 2, 2017 5 comments News
Copyright, Course Materials and YOU! by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/bmnrCJ

Why Fair Dealing is Not Destroying Canadian Publishing

While the copyright world waits for the likely appeal of the Access Copyright v. York University federal court decision (my post on the fair dealing legal errors, Ariel Katz on tariff legal errors), Canadian universities have begun to respond to the decision with many remaining committed to a reasonable policy based on licensing, open access, and fair dealing. Rather than a free-for-all, these approaches include spending hundreds of millions of dollars for access to thousands of copyright works.

This week, Intellectual Property Watch posted a longer piece of mine based on several recent posts and articles. It digs into the data, unpacking the realities behind revenues, guidelines, licensing, and emerging alternatives. The post begins:

Read more ›

July 27, 2017 Comments are Disabled News
Google Logo in Building43 by Robert Scoble (CC BY 2.0) https://flic.kr/p/7twZcy

Google Files Suit in U.S. Court To Block Enforcement of Canadian Global Takedown Order

Last month’s Supreme Court of Canada decision upholding a global takedown order requiring Google to remove search results on an international basis sparked widespread concern from civil liberties and digital rights groups who fear the implications for freedom of expression online (the case was celebrated by IP rights groups who now envision using Canada as the base for global takedowns). My initial post on the decision argued that the Court had failed to grapple with the elephant in the room, namely the broader implications of global takedowns and the likelihood of conflicts:

The Supreme Court of Canada did not address the broader implications of the decision, content to limit its reasoning to the need to address the harm being sustained by a Canadian company, the limited harm or burden to Google, and the ease with which potential conflicts could be addressed by adjusting the global takedown order. In doing so, it invites more global takedowns without requiring those seeking takedowns to identify potential conflicts or assess the implications in other countries.

The prospect of global conflicts has now come to the Equustek case with Google filing suit in a federal court in California asking the court to block enforcement the Canadian order on the grounds that it violates the U.S. constitution and federal laws.

Read more ›

July 25, 2017 4 comments News
22 NAFTA Style by Steven Taylor (CC BY-NC-ND 2.0) https://flic.kr/p/CSNKez

My NAFTA Consultation Comments: Promoting Canadian Interests in the IP and E-commerce Chapters

The Canadian government’s deadline for written submissions to the consultation on the renegotiation of the North American Free Trade Agreement closes today (though the government just announced that it will continue to accept comments on its form after the deadline). My submission to the consultation is posted below. I focus on two chapters: intellectual property and the new e-commerce chapter.

The submission begins with three broad comments and recommendations including the need for trade transparency, recognizing the importance of IP and e-commerce (and therefore not easily giving on those issues for gains elsewhere), and the desirability of an explicit commitment to balance as an objective in the IP chapter.

Read more ›

July 18, 2017 2 comments News
Doors Open Toronto 2017 - York University Station by wyliepoon (CC BY-NC-ND 2.0) https://flic.kr/p/V2EmvK

Ignoring the Supreme Court: Federal Court Judge Hands Access Copyright Fair Dealing Victory

For the past 13 years, Canadian copyright jurisprudence has followed a consistent trajectory. Starting with the Supreme Court of Canada’s CCH decision in 2004, Canadian courts and tribunals have affirmed the need for balance in copyright and the importance of user’s rights. That approach has been particularly evident in fair dealing cases. Much to the dismay of Access Copyright, from the Supreme Court’s 2012 copyright pentalogy cases (including Alberta v. Access Copyright and SOCAN v. Bell) to the Copyright Board’s rulings on copying in K-12 schools and governments to the Federal Court of Appeal (upholding the Copyright Board’s decisions), the courts have upheld the need for balance and a broad, liberal approach to fair dealing.

Yesterday, however, five years to the day of the release of the Supreme Court’s copyright pentalogy, Access Copyright found a willing taker for its legal arguments. Judge Michael Phelan of the Federal Court of Canada delivered a complete victory for the copyright collective, rejecting York University’s fair dealing approach and concluding that an interim tariff is mandatory and enforceable against the university. The immediate implications of the decision are significant: royalty payments to Access Copyright (that will likely be kept in escrow pending any appeals) and the prospect of other universities re-thinking their current copyright policies. The decision will also have an effect on the copyright review scheduled for later this year. With the court’s decision, there will be little reason to revisit the inclusion of the “education” purpose in fair dealing as it had no discernible impact on the court’s legal analysis.

Read more ›

July 13, 2017 29 comments News