Michael Geist

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Why Competition Holds the Key to a Broken Broadcast System

As the Canadian Radio-television and Telecommunications Commission concludes its hearing on the consolidation of the Canadian communications market into a handful of corporate giants (so-called vertical integration) and embarks on a “fact-finding exercise” on the impact of online video services (today is the submission deadline), my weekly technology law column (Toronto Star version, homepage version) notes the only obvious conclusion from the hundreds of submissions and hours of debate is that Canada’s broadcast law framework is broken.

The Commission’s struggle to make sense of the changing corporate and technological landscape – alongside lobbying for new industry codes of practice and Internet regulations – is rooted in a regulatory framework premised on scarcity rather than abundance. When the law was crafted, broadcasters occupied a privileged position, since the creation of video was expensive and the spectrum needed to distribute it scarce. As a result, the government established a licensing system complete with content requirements and cultural contributions designed to further a myriad of policy goals.

Yet among the more than 40 policy goals found in the current Broadcasting Act, the word “competition” does not appear once. The absence of competition may have made sense when there was little of it, but in today’s world of abundance featuring a seemingly unlimited array of content and distribution possibilities, fostering competition among broadcasters and broadcast distributors such as cable and satellite companies might hold the key to reforming the system.

What might a competition-focused broadcast policy look like?

July 5, 2011 — 13 comments — Columns

CRTC Releases Draft Regulations for Electronic Commerce Protection Act

The CRTC has released draft regulations for the provisions it deals with in Canada’s new anti-spam legislation. The CRTC regulations are only part of the picture with Industry Canada scheduled to release its own regulations shortly. The CRTC regulations include specifications on the information that must be included in a commercial electronic message:

July 4, 2011 — 5 comments — News

Suber on Copyright and Open Access

Peter Suber has an informative post on the interaction between copyright and open access, which includes helpful copyright reforms focused on public domain, copyright misuse, orphan works, and circumvention for non-infringing purposes.

July 4, 2011 — Comments are Disabled — News

Spain’s Performing Rights Organization Raided By Anti-Corruption Police

The General Society of Authors and Publishers (SGAE), Spain’s performing rights organization (SOCAN equivalent), was raided late last week by anti-corruption police as part of an investigation into embezzlement and misappropriation.

July 4, 2011 — 1 comment — News

CRIA Targets Fair Dealing: Tells Supreme Court New Restrictions Needed on User Rights

One of the most frequently discussed issues at the hearings on Bill C-32 was the implications of extending the fair dealing categories to include education, parody, and satire. Throughout the discussion, the starting point was the Supreme Court of Canada’s approach to fair dealing, which consists of a two-stage analysis. First, the use must qualify for one of the fair dealing categories. Second, assuming it does qualify under one of the categories, the court identified six factors to consider to gauge the fairness of the dealing in Law Society of Upper Canada v. CCH Canadian, the seminal case on fair dealing in Canada. The six factors identified by the court are:

The Purpose of the Dealing – the Court explained that â€œallowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights.â€
The Character of the Dealing – one should ask whether there was a single copy or were multiple copies made. It may be relevant to look at industry standards.
The Amount of the Dealing – â€œBoth the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness.â€ The extent of the copying may be different according to the use.
Alternatives to the Dealing – Was a “non-copyrighted equivalent of the work” available?
The Nature of the Work – “If a work has not been published, the dealing may be more fair, in that its reproduction with acknowledgement could lead to a wider public dissemination of the work – one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.”
Effect of the Dealing on the Work – Will copying the work affect the market of original work? “Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.”

University of Western Ontario professor Sam Trosow now notes that the Canadian Recording Industry Association has taken aim at the fair dealing test, submitting a factum to the Supreme Court in a forthcoming case on whether song previews may constitute fair dealing that argues that the court’s analysis is, well, wrong (Trosow also notes the surprise of finding the lawyer representing Canadian universities arguing in favour of this fair dealing test now also arguing against it for the recording industry).

June 30, 2011 — 32 comments — News