Technology law column by Michael Geist

For copyright watchers, New Year's Day has become public domain day, the day when the term of copyright expires on thousands of works. While Europe celebrated the entry of James Joyce and Virginia Woolf into their public domain, Canadians noted that both authors’ copyright expired here in 1991. The term of copyright in Canada is consistent with the international standard of life of the author plus 50 years, which this year meant that the works of Ernest Hemingway and Carl Jung entered into the public domain, twenty years before they are scheduled to do so in Europe or the United States.

The Trans Pacific Partnership Agreement may place the difference in copyright term in jeopardy (a recent leaked draft indicates that it mandates extending the term of copyright), but for the moment it provides Canada with an important competitive advantage. Canadian businesses, creators and educators can rely on a far larger public domain than competitors in the U.S. and Europe, leading to new creative and commercial opportunities as well as increased access for teachers and students.

The House of Commons resumes this week with most political attention likely to be focused on the upcoming budget. Around the same time as the budget is tabled, Industry Minister Christian Paradis is expected to unveil Canada’s much-anticipated spectrum auction policy, a decision that will define the competitive landscape for telecom and Internet services for the next decade.

While interest in spectrum auction policy is typically limited to telecom companies and business analysts, all Canadians have a stake in this decision. The available spectrum - known as the 700 MHz spectrum - opens up a host of possibilities for new innovation, competitors, and open Internet access. It is viewed as particularly valuable spectrum since it easily penetrates walls, making it ideal for delivering wireless high-speed Internet services.

Auctioning the spectrum raises a host of critical policy choices. Topping the list is whether the government tinkers with the auction framework to help foster greater marketplace competition. Some of the large incumbents unsurprisingly favour an “open auction” with no bidding limits, but assuming Paradis concludes that some measures are needed, the choice will likely come down to either a spectrum set-aside that reserves some spectrum for new entrants and smaller companies or spectrum caps.

Last week's Wikipedia-led blackout in protest of U.S. copyright legislation called the Stop Online Piracy Act (SOPA) is being hailed by some as the Internet Spring, the day that millions fought back against restrictive legislative proposals that posed a serious threat to an open Internet.

Derided by critics as a gimmick, it is hard to see how the SOPA protest can be fairly characterized as anything other than a stunning success. Wikipedia reports that 162 million people viewed its blackout page during the 24-hour protest period. By comparison, the most-watched television program of 2011, the Super Bowl, attracted 111 million viewers.

More impressive were the number of people who took action. Eight million Wikipedia visitors looked up contact information for their elected representatives, seven million people signed a Google petition, and Engine Advocacy reported that it was completing 2,000 phone calls per second to local members of Congress.

The protest launched a political earthquake as previously supportive politicians raced for the exits. According to ProPublica, the day before the protest, 80 members of Congress supported the legislation and 31 opposed. Two days later, there were only 63 supporters and 122 opposed.

Yesterday my website, michaelgeist.ca, went dark for 12 hours with thousands of posts replaced by a single page warning against proposed U.S. legislation called the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).  My site was not alone as the online protest included some of the Internet’s most popular sites including Wikipedia, Craigslist, and Reddit. It is nice to be in good company, but taking an academic site committed to open access to information offline on a day when thousands came visiting anxious to learn more copyright and the Internet was not a decision to take lightly.

My decision had little to do with the expectation that Canadians can influence U.S. legislation since it is pretty clear they can’t.  Rather, there were four main reasons why I thought participation in the “SOPA protests” was essential.

One of the first Canadian digital-era laws was the Uniform Electronic Commerce Act, a model law created by the Uniform Law Conference of Canada in the late 1990s. The ULCC brings together officials from federal, provincial, and territorial governments to work on model laws that can be implemented in a similar manner across all Canadian jurisdictions.
While a federal e-commerce law may have been preferable, the constitutional division of powers meant that it fell to the provinces to enact those laws.

The provinces took the lead on e-commerce legislation in the late 1990s, but over the past decade it has been the federal government that has led on most other digital rules, including privacy legislation, the anti-spam statute, and proposed digital copyright reform. Those efforts are now in constitutional limbo following the Supreme Court of Canada’s recent ruling that plans to create a single securities regulator are unconstitutional.

Technology law and policy is notoriously unpredictable but 2012 promises to be a busy year. My best guess for the coming months:

January. The Supreme Court of Canada holds a hearing on whether Internet service providers can be treated as broadcasters under the Broadcasting Act. The case, which arises from a CRTC reference to the courts on the issue, represents the last possibility for an ISP levy similar to the one paid by broadcasters under the current rules.

February. Industry Minister Christian Paradis unveils proposed spectrum auction rules along with changes to Canadian restrictions on foreign ownership of telecom companies. After the earlier trial balloon of opening up the market to companies with less than 10 percent market share generated a tepid response, the government jumps in with both feet by announcing plans to remove foreign investment limits for telecom companies starting in 2013 in conjunction with the next spectrum auction.

March. Canada and the European Union reach a preliminary agreement on a major new trade agreement. While much of the attention is directed toward the implications for the agricultural sector, Canada quietly caves on patent issues that may add billions to pharmaceutical costs. Meanwhile, Canada formalizes its open government commitment at a global meeting in Brazil.

The past 12 months in law and technology were exceptionally active, with legislative battles over privacy and copyright, near-continuous controversy at the CRTC, and an active Supreme Court of Canada docket. A look back at 2011 from A to Z:

A is for the Amazon one-click patent, which is at the centre of a long running fight over the validity of business method patents in Canada.

B is for Baglow v. Smith, an Ontario Superior Court decision which ruled that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog.

C is for Century 21, which won a major case over Rogers Communications and its real estate search site Zoocasa. The case included important findings on online contracts, trespass, and copyright.

D is for the digital television transition, which finally occurred on August 31st.

E is for eHarmony, the online dating site that was the subject of a privacy commissioner investigation leading to changes to its customer data deletion practices.

F is for false news, which erupted as a controversy after the CRTC quietly proposed a significant change to the rules on false or misleading news broadcasts on radio or television.

Early next year the government will introduce lawful access legislation featuring new information disclosure requirements for Internet providers, the installation of mandated surveillance technologies, and creation of new police powers. Public Safety Minister Vic Toews, the chief proponent of the new law, has defended the plans, stating that opponents are putting "the rights of child pornographers and organized crime ahead of the rights of law-abiding citizens."

Toews’ stance in the face of widespread criticism from the privacy community and opposition parties is likely to be accompanied by a series of shaky justifications for the legislation.

For example, the bill will mandate the disclosure of Internet provider customer information without court oversight - that is, without a warrant. Under current privacy laws, providers may voluntarily disclose customer information but are not required to do so.  Toews has argued that the mandated information is akin to "phone book data" that is typically publicly available without restriction.

For most of the past hundred years, the Supreme Court of Canada heard the occasional copyright case with significant cases popping up once every ten or twenty years. That started to change in 2001 with a big case reaching Canada's top court every year or two. While that seemed like a busy schedule, it is nothing compared to the coming week, where the court will hear an unprecedented five copyright cases over the course of two packed days.

The cases feature a who's who of the Canadian copyright and communications world with the Entertainment Software Association of Canada (ESAC), Canadian Recording Industry Association, Apple, Bell Canada, Rogers Communications, and leading copyright collectives such as SOCAN and Access Copyright among the litigants.

The common theme among the cases is that they all originate with the Copyright Board of Canada. Whether the board is asked to establish tariffs for the communication of music or the copying of materials in schools, its decisions have become highly contested and invariably subject to judicial review.  

It is possible that the Supreme Court is chiefly interested in the administrative law issues raised by the board rather than substantive copyright questions. Should it choose to wade into the copyright concerns, however, two issues jump out as the key ones.

Earlier this month, Industry Minister Christian Paradis held a press conference to launch the Digital Technology Adoption Pilot Program, which will provide $80 million to small and medium sized businesses to integrate digital technologies. Paradis described the program as an important component of the government's digital economy strategy.

While the program may create some useful incentives for technology adoption, it was Paradis' reference to a digital economy strategy that attracted the attention of policy watchers. The digital economy strategy has emerged as the government's "Penske File", the source of considerable discussion and much "work" but thus far few tangible results (for non-Seinfeld watchers, the Penske file has become synonymous for a non-existent work project).

Most of Canada's trading partners have had digital economy strategies in place for years, using the policies to set goals for connectivity, guide investments in networks and digital infrastructure, as well as establish legal frameworks to provide privacy protection and enhance consumer confidence in electronic commerce.