Michael Geist

Latest Posts

Cave or Cancel?: The Future (or End) of the Canada – EU Trade Agreement

Last November, Maclean’s columnist Paul Wells wrote a piece on the Canada – EU Trade Agreement in which he expressed doubt about the ability to conclude the deal (“Everybody connected to the negotiations assures me there will be a deal. Every public sign I see makes me think there won’t.”). I was skeptical about the prospect of years of negotiations falling apart and expected the political level meetings in November to wrap things up. They didn’t. Last month, International Trade Minister Ed Fast and his European counterpart Karel de Gucht tried again. Still no deal.

While Fast wants everyone to believe that momentum is building toward an agreement, it clearly is not. Over the last year, Canada’s lead lawyer on the negotiations resigned, Canada’s lead agricultural negotiator was re-assigned, and the EU’s lead negotiator has added the EU – Vietnam agreement to his responsibilities with rumours that he will head the EU – Japan trade talks. Fast says he won’t negotiate the agreement in the media and then proceeds to do exactly that by staking out positions on agriculture and investment. The same business groups that have been lobbying for the deal issue a public letter on the agreement that does little other than promise “future support.”

All of this adds up to missed deadline after missed deadline. In 2010, officials said the deal would be completed in 2011. In early 2011, they said it would be completed by the end of the year. By late 2011, the deadline had moved to 2012. Yet it is now 2013 and Fast admitted this week that there may not be an agreement this year.

March 15, 2013 — 5 comments — News

What’s Really Behind Canada’s Anti-Counterfeiting Bill?

With only limited fanfare, earlier this month Industry Minister Christian Paradis introduced Bill C-56, the Combating Counterfeit Products Act. Since no one supports counterfeit products – there are legitimate concerns associated with health and safety – measures designed to address the issue would presumably enjoy public and all-party support. Yet within days of its introduction, the bill was the target of attacks from both opposition parties and the public.

The NDP raised the issue during Question Period in the House of Commons, accusing the government of trying to implement the widely discredited Anti-Counterfeiting Trade Agreement (ACTA) “through the backdoor.” The public also picked up on the issue, noting that the bill appears to be less about protecting Canadians and more about caving to U.S. pressure (the U.S. called on Canada to implement ACTA on the same day the bill was tabled).

My weekly technology law column (Toronto Star version, homepage version) notes the concerns associated with the bill fall into two main categories: substance and ACTA implementation. The substantive concerns start with the decision to grant customs officials broad new powers without court oversight. Under the bill, customs officials are required to assess whether goods entering or exiting the country infringe any copyright or trademark rights.

March 13, 2013 — 11 comments — Columns

Canipre Admits It’s Behind Voltage-TekSavvy File Sharing Lawsuits With Speculative Invoicing Scheme

Canipre, a Montreal-based intellectual property rights enforcement firm, has admitted that it is behind the Voltage file sharing lawsuits involving TekSavvy in what is described as a “speculative invoicing” scheme. Often referred to as copyright trolling, speculative invoicing involves sending hundreds or thousands of demand letters alleging copyright infringement and seeking thousands of dollars in compensation. Those cases rarely – if ever – go to court as the intent is simply to scare enough people into settling in order to generate a profit.

Canadian Business reports that Canipre’s goal is to import the speculative invoicing strategy to Canada and that it found a willing partner in Voltage Pictures. Canipre collected thousands of IP addresses that are alleged to have downloaded Voltage films and Voltage is now asking the Federal Court to order TekSavvy to disclose the subscriber names linked to the IP addresses.

The Canipre admission is important because it is consistent with arguments that the case involves copyright trolling and that the Federal Court should not support the scheme by ordering the disclosure of subscriber contact information.

March 12, 2013 — 29 comments — News

National Post Appears to Drop Fair Dealing Licensing System

Last week I wrote about the National Post seeking $150 licences for posting short excerpts online. It appears that the paper has now dropped the system.

March 12, 2013 — 1 comment — News

Canadian Wireless Reality Check: Why Our Wireless Market is Still Woefully Uncompetitive

In the aftermath of the CRTC’s hearing on a consumer wireless code and the government’s announcement of its plan for future spectrum auctions, a debate has raged over the competitiveness and health of the Canadian wireless market. Scotia Capital released a report last week titled “Canadian wireless myths and facts” that argued the Canadian market is healthy and that “it is time for the regulators to declare victory on the policies they adopted five years ago”. Meanwhile, Open Media issued a report titled Time for an Upgrade: Demanding Choice in Canada’s Cell Phone Market that places on the spotlight on many of the ongoing problems in the market, with a particular focus on consumer complaints. The report includes many recommendations for regulatory and policy reform.

The reality is that both the regulators and politicians have either expressly or impliedly acknowledged that the Canadian wireless market is uncompetitive. Last week, Industry Minister Christian Paradis promoted the government’s past moves on wireless competition, but admitted that “there is much more to do.” Meanwhile, the Competition Bureau told the CRTC in its submission on the wireless code of conduct that:

certain impediments continue to diminish the effect of competitive forces in this industry. First, certain industry practices have tended to impose costs on consumers who wish to avail themselves of competitive alternatives. Second, consumers are not always provided with sufficient information in an adequately clear manner to make informed purchase decisions.

This post seeks to extend the debate and respond to some of Scotia Capital’s claims. It identifies ten reasons why there is ample evidence that the Canadian wireless market remains woefully uncompetitive when compared with peer countries around the world with higher costs, price gouging, and restrictive terms.

March 10, 2013 — 93 comments — News