Michael Geist

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Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP

Why Isn’t Fair Dealing Enough?: Government Considering Copyright Exception to Cover Political Advertising

Reports from CTV and the Globe and Mail indicate that the government is planning to introduce a new copyright exception for political advertising. The reports suggest that the exception would permit the use of news content in political advertising without authorization provided that it meets three conditions:

News content would have to meet three criteria for this exemption, the cabinet memo says. It would have to be published or made available through TV broadcasts or platforms such as YouTube. It would have to be obtained from a news source such as a news program or newspaper or periodical. And it would have to feature a political actor operating in that person’s capacity as a politician, or relate to a political issue.

While the reports sparked an immediate reaction claiming the government is legalizing theft, my view is that copyright law should not be used to stifle legitimate speech. Political speech – even noxious attack ads – surely qualifies as important speech that merits protection (see this CDT analysis for similar concerns in the US). I am not a fan of attack ads, but attempts to use copyright to claim absolute rights over the use of a portion of a video clip is surely counter to basic principles of fair dealing (in Canada) or fair use.

October 8, 2014 — 15 comments — News

2012 Trailer Park Boys Minneapolis by James (CC BY-NC-ND 2.0) https://flic.kr/p/dDisgE

It’s Time to Be Honest: Netflix Will Not Mean the End of Canadian Television

The Globe and Mail’s Simon Houpt ran a column over the weekend titled It’s Time to be Honest: Netflix is Parasitic. The piece received some positive commentary on Twitter, with some suggesting that it provided a counter-view to the Netflix support that has prevailed publicly and politically for several weeks in Canada. Houpt uses some effective imagery (Netflix as a Wal-Mart or Costco behemoth that will lay waste to Canadian film producers in the same way that the retail giants take out “mom and pop” stores), but this post argues that he does not come close to making his case.

The Netflix backlash (also found in Globe pieces from Kate Taylor and John Doyle) can be distilled down to two key concerns. First, that Netflix only produces a limited amount of original content and merely selling access to a large library will gradually mean no new content. Second, that Netflix (unlike the conventional broadcasters) does not contribute to the creation of original Canadian programming and the erosion of that support will lead to the end of new Canadian content. This second concern lies at the heart of the calls for a mandatory contribution by Netflix (referred to by some as a Netflix tax).

October 8, 2014 — 24 comments — News

Trust by Terry Johnston (CC BY 2.0) https://flic.kr/p/Hf1p8

The Canadian Wireless Market and the Big 3: It’s Always Been a Matter of Trust

Fresh off the contentious hearing on the future of television regulation, the Canadian Radio-television and Telecommunications Commission jumped back into the fire last week with a hearing on the wireless market that focused on whether changes are needed to the wholesale market to improve competition.

The Big 3 – Bell, Telus, and Rogers – unsurprisingly opposed new measures, arguing that the Commission should reject the Competition Bureau’s independent finding that there are competition concerns along with the smaller players and consumer groups that support new regulations. Instead, they argue that Canadians can trust that the market is already competitive and that reforms would reduce investment and harm the quality of the networks.

My weekly technology law column (Toronto Star version, homepage version) notes that if that message evokes a sense of déjà vu, perhaps that is because it is seemingly always a matter of trust when it comes to Canadian wireless services.

October 6, 2014 — 11 comments — Columns

Bury your head in the sand... by Sander van der Wel (CC BY-SA 2.0) https://flic.kr/p/af6AGY

Government Goes for the “Head in the Sand” Approach on Voluntary Warrantless Disclosures

In the aftermath of the Supreme Court of Canada’s Spencer decision, I argued that the decision upholding the reasonable expectation of privacy in subscriber information contradicted the government’s claims supporting Bills C-13 and S-4, leaving the government’s lawful access strategy in tatters. I noted that it faced a choice:

The Canadian government could adopt the “bury our heads in the sand approach” by leaving the provision unchanged, knowing that it will be unused or subject to challenge. That would run counter to the spirit of the Supreme Court ruling, however, and do nothing to assist law enforcement.

Yesterday, the government did just that, as Bill C-13 passed another legislative hurdle with the reported committee version of the bill was approved by the House. During the debate, the government insisted that the legislation is consistent with the Spencer decision. While it is true that the voluntary warrantless disclosure provision does not directly contradict the Spencer decision, the reality is that it has been rendered largely moot. In other words, the government is touting a legislative solution to assist law enforcement that the police will not use and that telecom companies will ignore.

October 2, 2014 — 1 comment — News

Ignore Point by Daniel Kulinski (CC BY-NC-SA 2.0) https://flic.kr/p/aPcRB2

The CRTC’s Right to Forget: Regulator to Ignore Netflix and Google TalkTV Submissions

The Canadian Radio-television and Telecommunications Commission backed down in its public spat with Netflix and Google yesterday, releasing public letters advising the two Internet giants that without the supporting evidence it was seeking, the CRTC will remove all Netflix and Google materials (including submitted documents and transcripts) from the public record. The Commission emphasized that it maintains the power under Section 16 of the Broadcasting Act to require disclosure of information and that participants cannot pick and choose the parts of the regulatory process they participate in. Yet rather than enforce that power, it has decided not to fight the Netflix and Google refusal to disclose information, instead opting for a regulatory right to forget.

September 30, 2014 — 6 comments — News