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TRAILER PARK BOYS INTRODUCING BRIAN SCOLARO by Pemberton Music Festival (CC BY-NC 2.0) https://flic.kr/p/ow12W1

Race to the Bottom: Why Government Tax Credits For Film and TV Production Don’t Pay

The Nova Scotia government has been embroiled in a high profile controversy for the past week following its decision to slash tax credits available to film and television production in the province. The decision sparked an immediate backlash from the industry, which staged a major protest last Wednesday across from the legislature in Halifax.

While the government’s approach is certainly open to criticism – abruptly cutting the tax credits without warning may force the cancellation of long-planned productions this summer – the larger question of whether it should provide massive tax relief to the film and television industry is an important one. Eliminating or cutting the programs is politically difficult given the star power associated with film and television production, yet a growing number of studies have found that film and television tax credits do not deliver much bang for the buck.

My weekly technology law column (Toronto Star version, homepage version) notes that the widespread use of film and television production tax subsidies dates back more than two decades as states and provinces used them to lure productions with the promise of new jobs and increased economic activity. The proliferation of subsidies and tax credits created a race to the bottom, where ever-increasing incentives were required to distinguish one province or state from the other.

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April 20, 2015 27 comments Columns
FAIL! by John Pasden (CC BY-NC 2.0) https://flic.kr/p/7w4eB3

Nobody’s Perfect: Leaked Contract Reveals Sony Requires Netflix To Geo-Block But Acknowledges Technology Is Imperfect

The Wikileaks release of tens of thousands of Sony documents includes revelations about opposition to the copyright treaty for the blind, political fundraising, concerns about fair use in treaties, strategies to fund screening rooms in embassies to create a stronger will to protect studio interests, and personal calls to Prime Ministers (UK Prime Minister Cameron in this case) regarding the copyright law. The documents also show that Sony lobbied Netflix to stop Australian users from using VPNs to access the service. Yet it would appear that Sony’s own licence terms with Netflix opens the door to general VPN use.

The documents also include a stunning array of commercial documents, including licensing agreements with broadcasters and online video services around the world. A general search for Canadian documents immediately uncovered parts of the licensing agreement between Sony and Netflix, including the content protection requirements and obligations. Netflix is unsurprisingly requirement to encrypt all programs, use only pre-approved digital rights management systems, and meet various technical requirements.  Of great interest to many Netflix subscribers, particularly those that try to access U.S. Netflix, are the requirements related to geographic filtering. The provision states:

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April 17, 2015 8 comments News
Początek marszu by Piotr Drabik (CC BY 2.0) https://flic.kr/p/ocTafz

Canada’s Non-Commercial Copyright Fail: Why Did YouTube Mute a Holocaust Memorial Video?

Holocaust Remembrance Day (Yom HaShoah) starts tonight with events planned around the world. Last year, my daughter Jordan participated in the March of the Living, an annual event that brings thousands of people from around the world to the concentration camps in Poland. The experience had a profound effect and since her return she has become increasingly active within the March of the Living organization including joining the Ottawa board of directors. As part of tonight’s Holocaust remembrance event in Ottawa, she was asked to create a video to commemorate last year’s trip including interviews with participants, pictures, and video. She spent hours interviewing 18 participants on their experience and worked through hundreds of photos and hours of video to create a five-minute snapshot.

Last week, she posted the video to YouTube in anticipation of tonight’s event. Within hours, she received a message from the event organizer’s wondering why so few interviews appeared on the video. When she looked into the issue, she found that YouTube had muted the audio track with interviews after a couple of minutes (at 2:14 to be precise). The reason? The video includes some copyrighted background music. YouTube’s approach when it matches audio to a copyrighted work is to mute the non-music track, though it provides an option to fill out a fair dealing/fair use claim. Jordan did that, pointing out that Section 29.21 of the Canadian Copyright Act provides specific protection for non-commercial user generated content.  The provision states:

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April 15, 2015 12 comments News
back to drawing board by Michael Kötter (CC BY-NC-SA 2.0) https://flic.kr/p/dqQzTn

Back to the Drawing Board: Bell Drops Opt-Out Targeted Ad Program

Days after the Office of the Privacy Commissioner of Canada released its decision that found that Bell was violating Canadian privacy law with its targeted ad program, the communications giant advised that it is withdrawing its program and deleting all customer profiles. A company spokesperson stated yesterday that Bell plans to re-introduce the program using an opt-in consent approach. That would likely require more than just a change to the privacy policy since the company would need to provide customers with incentives or compensation to get much acceptance to be voluntarily tracked.

My weekly technology law column (Toronto Star version, homepage version) notes that Bell’s targeted advertising program, which creates customer profiles that include age, gender, account location, credit score, pricing plan, and average revenue per user, generated controversy from the moment it was announced in October 2013. The communications giant maintained that it complied with Canadian privacy laws, yet many clearly disagreed as the Privacy Commissioner of Canada received an unprecedented barrage of complaints.

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April 14, 2015 2 comments Columns
fuzzy copyright by Nancy Sims (CC BY-NC 2.0) https://flic.kr/p/37jCsU

The Copyright Notice Flood: What to Consider If You Receive a Copyright Infringement Notification

For the past few months, I’ve received daily emails from people who have been sent a copyright infringement notification as part of Canada’s notice-and-notice system. Most of the notifications come from CEG-TEK, a U.S.-based anti-piracy firm. Canadian Internet providers are now required by law to forward these notifications and CEG TEK has been taking advantage of a loophole in the system to include a settlement demand within the notification. Some of the recipients claim that the notification has been sent in error. Others say that they have received multiple notifications for a single download. In some cases, the recipient has clicked on the settlement demand link, while in others the person has called the company and revealed their identity. In virtually every case, they are looking for advice on what to do.

My typical response has been to point to my earlier posts on the issue that have explained Canada’s notice-and-notice system, the misuse of the system by rights holders in sending misleading information about Canadian copyright law, the government’s failure to stop the inclusion of settlement demands within the notices, and the massive expansion in the number of notices with the arrival of CEG TEK. I also point to Industry Canada’s page on the notice-and-notice system, which provides the government’s perspective on the issue. These resources can be helpful, but what most people really want to know is whether they should pay the settlement or ignore it. I don’t condone infringement but I believe that the misuse of the notice and notice system is extremely problematic. Moreover, I certainly think people that did not infringe copyright should not pay a settlement demand. I’m unable to provide specific legal advice, but I can provide more information that may assist in making a more informed decision about a system that was designed to discourage infringement, not create a loophole to facilitate settlement demands.

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April 13, 2015 33 comments News