Michael Geist

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Canada’s Digital Divide Likely to Widen Due to Access and Adoption Failures

The state of Internet access in Canada has been the subject of considerable debate in recent years as consumers and businesses alike assess whether Canadians have universal access to fast, affordable broadband that compares favourably with other countries. A new House of Commons study currently being conducted by the Standing Committee on Industry, Science and Technology offers the chance to gain a better understanding of the strengths and weaknesses of Canadian high-speed networks and what role the government might play in addressing any shortcomings.

The study is ongoing, yet my weekly technology law column (Toronto Star version, homepage version) notes that two issues are emerging as key concerns: access and adoption.

April 10, 2013 — 5 comments — Columns

Access Copyright’s Desperate Declaration of War Against Fair Dealing

Months after the Supreme Court of Canada delivered a stinging defeat to Access Copyright by ruling for an expansive approach to fair dealing and the government passed copyright reforms that further expanded the scope of fair dealing, the copyright collective responded yesterday with what amounts to a desperate declaration of war against fair dealing. In the aftermath of the court decisions and legislative reforms, a consensus emerged within the Canadian education community on the scope of fair dealing. The fair dealing policies used guidance from the Supreme Court to establish clear limits on copying and eliminate claims that the law was now a free-for-all. In developing those fair dealing policies, however, many institutions no longer saw much value in the Access Copyright licence.

Access Copyright has decided to fight the law – along with governments, educational institutions, teachers, librarians, and taxpayers – on several fronts. It has filed for an interim tariff with the Copyright Board in an effort to stop K-12 schools from opting out of its licence and it has filed a proposed post-secondary tariff that would run well after most Canadian schools will have opted out of its licence. Most notably, it has filed a lawsuit against York University over its fair dealing guidelines, which are similar to those adopted by educational institutions across the country. While the lawsuit has yet to be posted online [Update: Statement of Claim posted here], the Access Copyright release suggests that the suit is not alleging specific instances of infringement, but rather takes issue with guidelines it says are “arbitrary and unsupported” and that “authorize and encourage copying that is not supported by the law.”

Most of Access Copyright’s longstanding arguments were dismissed by the Supreme Court this past summer.

April 9, 2013 — 11 comments — News

Quebec Court Rejects eBay’s Online Contract Opening Door to Local Lawsuit

Few things are more common on the Internet than the lengthy, largely incomprehensible, online contracts that are often buried at the bottom of web pages with a simple link to “terms”. These agreements sometimes run dozens of pages if printed out and invariably transfer all responsibility and liability to the user, while selecting a jurisdiction clause that is advantageous to the website and inconvenient to most users.

Consumers agree to these contracts dozens of times each day (sometimes proactively by clicking that they agree and most other times by impliedly agreeing to the terms by using the website), but the enforceability of all the terms within the agreement remains an open question.

The law has removed most uncertainty about whether an electronic contract can be enforceable – it can – but ensuring that the form of the contract is valid does not mean that all of its provisions will be enforced by a court. My weekly technology law column (Toronto Star version, homepage version) notes that last month, a Quebec court provided an important reminder that some provisions may not be enforced, as it rejected eBay’s standard terms which require all disputes to be adjudicated in California.

April 4, 2013 — 10 comments — Columns

CWTA Calls on Government to Use Spectrum Auction Proceeds to Pay for Lawful Access

The government may have killed lawful access, but the Canadian Wireless Telecommunications Association apparently thinks it will return and is urging the government to earmark revenues generated by the forthcoming spectrum auction to pay for it. In an appearance before the Standing Committee on Industry on March 26th, CWTA President […]

April 3, 2013 — 7 comments — News

Debating the State of Canadian Wireless Competition: The Present Isn’t So Friendly

Last week, I posted what I thought was a lengthy post on the state of Canadian wireless competition (and followed that with a condensed version in a column). This week, Telus’ Craig McTaggart showed what a long post actually looks like as he issued a 42 page response to my post as well as recent posts by Peter Nowak (here and here) and Open Media. While I won’t address everything in McTaggart’s post – Nowak responds here and Open Media can address the issues focused on their writing if they wish – a few responses are in order.

McTaggart is clearly passionate about these issues, going so far as to suggest that claims that Canada’s wireless market is uncompetitive is an “insult to TELUS’ team members.” Yet while he decries the use of older data, confusion of different issues, and cherry picking some statistics, he proceeds to do exactly that in his response. In fact, the oldest data I’ve seen in the myriad of recent posts on these issues can be found in McTaggart’s response as he relies 2005 data to argue that Canadians use their wireless devices more than most people in the world (page 16).

McTaggart starts his commentary on my post on page 11, going through each of my ten points. I’ll follow the same format:

March 21, 2013 — 47 comments — News