Canada and the U.S. reached agreement late yesterday on a new NAFTA (now renamed the U.S.-Mexico-Canada Agreement or USMCA). While much of the focus is on the dairy industry, dispute resolution, and the auto sector, the agreement will have significant implications for intellectual property, digital policy, and broadcasting. It will take some time to examine all the provisions, but the short-hand version is that Canada has agreed to extend the term of copyright, saved the notice-and-notice system for copyright infringement claims, extended the term of protection for biologics at significant long-term cost to the health care, agreed that Internet companies are not liable for third party content, extended border measures on counterfeiting, and promised to drop the CRTC policy that permitted U.S. commercials to be aired during the Super Bowl broadcast.
Post Tagged with: "internet"
Crunch Time in the NAFTA Negotiations: What’s at Play for Canada on Digital Policy
As the NAFTA negotiations hit a possible home stretch this week, the focal point has been primarily on issues such as dispute resolution, the dairy sector, and the auto industry. However, the digital policy issues will have huge implications for Canada and the outline of the agreement between the U.S. and Mexico suggests that Canada is facing considerable pressure to agree to changes to our copyright, patent, IP enforcement, and digital policy rules, contrary to our preferred negotiation approach.
The U.S. appears to be pushing for a TPP+ approach – the TPP provisions plus some additional changes it did not get as part of those negotiations. This is notable since Canadian authorities admitted that the TPP went far beyond any previous Canadian free trade agreement. The Canadian starting point is presumably the CPTPP, the revised TPP where Canada successfully argued for the suspension of some of the U.S.-backed provisions. This post outlines five of the biggest issues that are likely at play, though many others such as de minimis rules for shipments that affect online commerce will be closely watched and could ultimately require future reforms.
The CRTC’s Fundamental Flaw: Broadcasting May Be the Internet, but the Internet is Not Broadcasting
Canada’s communications regulator last week reversed decades of policy by recommending that the government implement new regulation and taxation for internet services in order to support the creation of Canadian content. The report on the future of program distribution, which will surely influence the newly established government panel reviewing Canada’s telecommunications and broadcasting laws, envisions new fees attached to virtually anything related to the internet: internet service providers, internet video services, and internet audio services (wherever located) to name a few.
My Globe and Mail op-ed notes with the remarkable popularity of services such as Netflix and YouTube, there is a widely held view that the internet has largely replaced the conventional broadcast system. Industry data suggests the business of broadcasters and broadcast distributors such as cable and satellite companies won’t end anytime soon, but it is undeniable that a growing number of Canadians access broadcast content through the internet.
The 1980s CRTC: The Commission Turns Back the Clock with Old-Style Regulation and Privileged Insider Access
The CRTC was long perceived by many Canadians as a captured regulator, largely inaccessible to the public as it dispensed decisions that safeguarded incumbents from disruptive competition. That reputation was buttressed by initial decisions on regulating Internet telephony, permitting Bell to engage in Internet throttling, and supporting a usage based billing approach that hampered competition. In recent years, some policies changed with the adoption of net neutrality regulations and the efforts of former chair Jean-Pierre Blais to prioritize consumer interests. Yet over the past few months, the CRTC under new chair Ian Scott seems determined to turn back the clock with a commission more comfortable with industry stakeholders and their priorities than consumer groups and facilitating competition.
Regulate Everything: The CRTC Goes All-In on Internet Taxation and Regulation
For two decades, a small collection of cultural groups have been pressing the CRTC to regulate and tax the Internet. As far back as 1998, the CRTC conducted hearings on “new media” in which groups argued that the dial-up Internet was little different than conventional broadcasting and should be regulated and taxed as such. The CRTC and successive governments consistently rejected the Internet regulation drumbeat, citing obvious differences with broadcast, competing public policy objectives such as affordable access, and the benefits of competition. That changed today as the CRTC released “Harnessing Change: The Future of Programming Distribution in Canada“, a difficult-to-read digital-only report (as if PDF is not digital) in which the CRTC jumps into the Internet regulation and taxation game with both feet.
Recent Posts
The Law Bytes Podcast, Episode 231: Sara Bannerman on How Canadian Political Parties Maximize Voter Data Collection and Minimize Privacy Safeguards 
The Law Bytes Podcast, Episode 230: Aengus Bridgman on the 2025 Federal Election, Social Media Platforms, and Misinformation 
The Law Bytes Podcast, Episode 229: My Digital Access Day Keynote – Assessing the Canadian Digital Policy Record 
Queen’s University Trustees Reject Divestment Efforts Emphasizing the Importance of Institutional Neutrality 
The Law Bytes Podcast, Episode 228: Kumanan Wilson on Why Canadian Health Data Requires Stronger Privacy Protection in the Trump Era
