Michael Geist

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What is on Television Tonight by Trey Ratcliff (CC BY-NC-SA 2.0) https://flic.kr/p/t1pU6

The CRTC’s Future of TV Hearing: “There is No Such Thing as Too Much Choice”

Rogers Communications unveiled its plan for streaming more than 1,000 National Hockey League games on the Internet last week. Having invested billions of dollars to obtain the Canadian broadcast and Internet rights to NHL hockey, the cable giant pointed to the future of broadcast by embracing consumer demand for making games available online.

As part of the launch, Rogers Media president Keith Pelley responded to questions about the approach by stating “there’s no such thing as too much choice. Let the consumer decide what they want to watch.” Pelley was speaking about hockey streaming, but my weekly technology law column (Toronto Star version, homepage version) notes his comments should resonate loudly this week in a broader context as the Canadian Radio-television and Telecommunications Commission opens its much-anticipated public hearing on the future of television in Canada.

The CRTC hearing has already generated thousands of advance comments from major stakeholders and individual Canadians. It has also unleashed considerable angst from established broadcasters, broadcast distributors, and content creators, who fear that the broadcast regulator will overhaul the current system by implementing changes such as mandatory pick-and-pay channel selection for consumers and reforms to longstanding policies such as simultaneous substitution (which allows Canadian broadcasters to substitute Canadian commercials into U.S. licensed programming).

September 8, 2014 — 3 comments — Columns

Vice President Biden Swears in Bruce Heyman as the U.S. Ambassador to Canada by Department of State (U.S. Government Work) https://flic.kr/p/muidu1

Why U.S. Pressure Is Behind the Stalled Canadian Anti-Counterfeiting Bill

Last year, the federal government trumpeted anti-counterfeiting legislation as a key priority. The bill raced through the legislative process in the winter and following some minor modifications after committee hearings, seemed set to pass through the House of Commons. Yet after committee approval, the bill suddenly stalled with little movement throughout the spring.

Why did a legislative priority with all-party approval seemingly grind to a halt?

My weekly technology law column (Toronto Star version, homepage version) suggests that the answer appears to stem from the appointment of Bruce Heyman as the new U.S. ambassador to Canada. During his appointment process, Heyman identified intellectual property issues as a top priority and as part of his first major speech as ambassador, singled out perceived shortcomings in the anti-counterfeiting bill.

September 2, 2014 — 7 comments — Columns

Wiertz Sebastien - Privacy by Sebastien Wiertz (CC BY 2.0) https://flic.kr/p/ahk6nh

BC Court Rules on Signing Away Your Reasonable Expectation of Privacy

Canadian privacy law has long been reliant on the principle of “reasonable expectation of privacy.” The principle is particularly important with respect to the Charter of Rights and Freedoms, as the Supreme Court of Canada has held that the right to be free from unreasonable search and seizure is grounded in a reasonable expectation of privacy in a free and democratic society.

The reasonable expectation of privacy standard provides a useful starting point for analysis, but the danger is that privacy rights can seemingly be lost with little more than a contractual provision indicating that the user has no privacy. Indeed, if privacy rights can disappear based on a sentence in a contract that few take the time to read (much less assess whether they are comfortable with), those rights stand on very shaky ground.

My weekly technology law column (Toronto Star version, homepage version) notes the limits of the reasonable expectation of privacy standard emerged in a recent British Columbia Court of Appeal case involving the search of a courier package that contained illegal drugs. The court rejected claims of an illegal search, concluding that the defendant had no reasonable expectation of privacy despite the fact that he had no commercial relationship with the courier company and had never agreed to, or even viewed, the terms of the contract.

August 27, 2014 — 9 comments — Columns

europe infinite copyright by Jose Mesa (CC BY 2.0) https://flic.kr/p/amMHBV

How Canada Shaped the Copyright Rules in the EU Trade Deal

In late December 2009, Wikileaks, the website that publishes secret government information, posted a copy of the draft intellectual property chapter of the Canada – European Trade Agreement (CETA). The CETA deal was still years from completion, but the leaked document revealed that the European Union envisioned using the agreement to mandate a massive overhaul of Canadian law.

The leak generated concern among many copyright watchers, but when a German television station leaked the final text of the agreement last week, it contained rules that largely reflect a “made-in-Canada” approach. Why the near-complete reversal in approach on one of the most contentious aspects of a 500 page treaty?

My weekly technology law column (Toronto Star version, homepage version) notes the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.

August 21, 2014 — 7 comments — Columns

GAC_0031 by icannphotos (CC BY-SA 2.0) https://flic.kr/p/8Z8CzX

Government Control Over Internet Governance: Proposal Would Give the GAC Increased Power over ICANN Board Decisions

The debate over Internet governance for much of the past decade has often come down to a battle between ICANN and the ITU (a UN body), which in turn is characterized as a choice between a private-sector led, bottoms-up, consensus model (ICANN) or a governmental-controlled approach. The reality has always been far more complicated. The U.S. still maintains contractual control over ICANN, while all governments exert considerable power within the ICANN model through the Governmental Advisory Committee (GAC).

While the GAC claims its role is merely to provide “advice” to ICANN, it often seems to take the view that its suggestions can’t be refused. Indeed, late on Friday, ICANN proposed a by-law change that would grant governments even greater control over its decision-making process. At the moment, ICANN looks to various supporting organizations to develop policies designed to represent the views of many different stakeholders, including the GAC. Where the GAC and the ICANN board disagree on a policy issue, the ICANN board decision governs provided that a simple majority of board members vote against the GAC advice and that ICANN provide an explanation for the decision.

ICANN is now proposing that the threshold be increased so that 2/3 of eligible ICANN board members would be required to vote against GAC advice in order to reject it.

August 18, 2014 — 6 comments — News