The CRTC has to date largely avoided the net neutrality issue, however, that is about to change. The Canadian Association of Internet Providers, Canada's largest ISP association, has filed a Part VII application with the CRTC asking it to direct Bell Canada to cease and desist from throttling its wholesale Internet service. The application, which was filed late yesterday and is not yet posted on the CRTC site, is the most significant legal development in the Canadian net neutrality debate yet since it places the issue squarely before the Commission. The filing provides additional insights into Bell's action – the throttling has reduced speeds by as much as 90 percent – and marks an important milestone since the outcome will provide a clear answer on whether Canadian law currently protects net neutrality or if legislative reform is needed.
The application notes that "Bell's traffic shaping measures have impaired the speed and performance of the wholesale ADSL access services that it provides to independent ISPs and other competitors, to the point where the quality of the service has been degraded beyond recognition." CAIP adds that the throttling is making it impossible for the independent ISPs to manage their networks and forcing them to pay for bandwidth they cannot use. In light of these effects, CAIP says "it seeks to restrain anti-competitive behaviour on the part of Bell. Thus, the relief requested. . . is intended to 'ensure the technological and competitive neutrality' of the interconnection and and wholesale services provided by Bell to independent ISPs and to promote competition from new technologies that are enabled by the Internet and ADSL access technology." CAIP is therefore asking for an order, issued on an urgent and expedited basis, "directing Bell Canada to immediately cease and desist from using any technologies to "shape", "throttle" and/or "choke" its wholesale ADSL services."
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The news is full of ISPs being asked/required to play a larger role in P2P – Japan's ISPs adopt a three strikes and you're out approach to subscribers engaged in file sharing, Sweden rejects that approach in favour of one that requires ISPs to disclose subscriber information to rights holders, […]
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My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) focuses on the plethora of new levy proposals that have emerged that could significantly increase the costs to consumers for Internet, television, and new media services. While cultural and creator groups are the primary proponents of these new funding schemes, they are by no means alone as broadcasters, cable companies, and Internet service providers have jumped into the levy and tariff game.
The cultural group proposals have focused primarily on Internet services. The best-known is the Songwriters Association of Canada plan to fully legalize peer-to-peer file sharing of music by adding a $5 monthly charge to the cost of Internet access. That proposal has generated considerable debate, with many consumers expressing concern about a plan that would hit all Internet users, without regard for whether they engage in peer-to-peer file sharing.
Joining the SAC plan is a recent proposal that has garnered support from a handful of creator groups that includes the Canadian Film and Television Production Association, the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), the Directors Guild of Canada, and Writers Guild of Canada. The proposal envisions the CRTC establishing a new mandatory ISP contribution of 2.5 percent of broadband revenue to help fund Canadian new media content creation.
Late last month, the groups released the results of a public opinion survey which they said found that "69 percent of Canadians believe that ISPs should be required to help fund the production of Canadian digital media content in the same way that cable and satellite TV providers are required to contribute a small percentage of their revenues to the production of Canadian television programs."
The proposals do not end there.
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CRIA tells the Globe and Mail that it is not seeking copyright provisions "related to content filtering or termination of repeat offenders."
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CRIA's Graham Henderson was in Ottawa today together with several other music groups to make their case for immediate copyright reform. Perhaps responding to the recent masthead editorials in the Vancouver Sun and National Post, the group met with the Ottawa Citizen's editorial board which has posted an MP3 version of the conversation. While there are some shots at me (counterfactual information?) and the obligatory distribution of Barry Sookman's attack on me and the Facebook group, there are two story lines that are worth noting (in addition to the ironic use of the CMCC's Feist as the Canadian artist example and the weak response to the Privacy Commissioner of Canada's concerns).
The first is that there is a great deal of common ground between what Henderson, CIRPA's Duncan McKie and the other attendees want and the Fair Copyright for Canada principles. Henderson and McKie both indicate that they have no intention of launching file sharing lawsuits, which should make the changes to the statutory damages provisions relatively non-contentious (though not a big win for users either). More importantly, several people in the room say they want WIPO, not the DMCA. That can be consistent with the Fair Copyright for Canada principles – linking anti-circumvention legislation to copyright infringement, avoiding a ban on devices that can be used to circumvent, and distribution as part of the making available right are all consistent with WIPO implementation.
While that is the good news, the second big story – which can easily be missed if you aren't paying attention – should send a chill down the spine of millions of Canadians.
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