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Technology law column by Michael Geist

Is the Competition Bureau Ready to Take on Media Convergence?

Canadian broadcasters and broadcast distributors have pursued a convergence strategy for the past decade that has created one of the world's most concentrated media markets. Four powerhouses - Bell Media, Rogers, Shaw, and Videotron - have been left standing with those companies now dominating broadcast television, radio, and broadcast distribution from coast to coast.

While it may already be too late, the proposed $3 billion Bell Media - Astral merger may represent the final opportunity to address mounting concerns over the competitive impact of a converged market. The new Bell Media - Astral entity will control approximately 45 per cent of the commercial radio market in Canada along with a dizzying array of television stations, specialty television channels, as well as wireless, satellite, and Internet services.

The Canadian Radio-television and Telecommunications Commission and the Competition Bureau share responsibility for approving media mergers. The CRTC is charged with assessing the cultural perspective and the Competition Bureau is tasked with assessing the economic impact.

Prime Minister's Privacy Policy Requires a Re-Write

As public concern over Internet privacy has grown in recent years, one of the first responses is invariably to focus on the need for improved disclosure through easily accessible website privacy policies. The policies provide information on how personal information is collected, used, and disclosed to third parties.

While few visitors read the policies from start to finish, it is important for websites to ensure that they are accurate, since misleading statements can lead to liability. The need for accuracy is particularly true if you're say, the Prime Minister of Canada. Yet a reader recently noticed that the Prime Minister's Office website may be incorrectly stating its use of cookies, which are small files that may be placed on user's computer hard drive by a website to monitor usage or identify repeat visitors.

Cookies can be used for a single visit to track how a user arrived at the site or which pages they visit. Alternatively, some cookies are "persistent" since they remain on the user's hard drive for months or years, often storing information such as language preferences or repeat visit data.

CRTC's Message to Broadcasters: Regulatory Games Coming To An End

Last week, the Canadian Radio-television and Telecommunications Commission announced that it is terminating the Local Programming Improvement Fund (LPIF). The fund, which was established in 2008, funneled over $300 million to broadcasters to support the creation of local programming. The decision caught the industry by surprise with the CBC calling it "astonishing" and Bell Media saying it is a "major concern."

Yet the end of the LPIF is only the latest in a series of moves that unravel recent regulatory efforts to provide broadcasters with increased financial support. The courts and the Commission have sent a clear signal that broadcasters should focus on marketplace success, not manipulating the regulatory system.

The past five years have been marked by enormous change in the Canadian broadcasting sector. The emergence of Internet video and online alternatives such as Netflix, an economic downturn that hurt advertising revenues, and media mergers among broadcasters and broadcast distributors left the CRTC scrambling to address a steady stream of demands for assistance from broadcasters and cultural groups.

Supreme Court Shakes the Foundations of Canadian Copyright Law

Copyright cases only reach the Supreme Court of Canada once every few years, ensuring that each case is carefully parsed and analyzed. Last week, the court issued rulings on five copyright cases in a single day, an unprecedented tally that will keep copyright experts busy for many months to come.

While the initial coverage unsurprisingly focused on the specific outcomes for the litigants, including wins for Apple (no fees for song previews on services such as iTunes), the entertainment software industry (no additional payment for music included in downloaded video games), and the education community (copying materials for instructional purposes may qualify as fair dealing), the bigger story are three broad principles that lie at the heart of the court's decisions.

Canada – European Trade Deal At Risk Due To Controversial Copyright Rules

In October 2007, several leading economies, including the U.S., European Union, and Canada, announced plans to negotiate the Anti-Counterfeiting Trade Agreement (ACTA). Despite being shrouded in secrecy, ACTA details slowly began to emerge, including revelations that lobby groups had been granted privileged access to the draft text as well as leaks that indicated that individual Internet users could be a prime target of new enforcement measures.

The ACTA talks concluded in 2010, but the controversy over the deal continued to grow. Earlier this year, thousands took the streets in Europe to protest against an agreement that was negotiated in secret and that raised serious concerns about privacy and free speech.

With public pressure mounting, the European Parliament voted overwhelmingly last week to reject ACTA, striking a major blow to the hopes of supporters who envisioned a landmark agreement that would set a new standard for intellectual property rights enforcement.

What's Behind Canada's Entry to the Trans-Pacific Partnership Talks?

Last week, U.S. President Barack Obama formally extended an invitation to Canada to join the Trans Pacific Partnership negotiations, a proposed trade deal that includes the U.S., Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam (Mexico was also added last week). Supporters have lauded the TPP as potentially the world's most important trade pact and the Canadian government spent months crossing the globe to lobby for an invitation.

Yet dig beneath the heady promises and the benefits for Canada are hard to identify. The price of admission was very steep - Canada appears to have agreed to conditions that grant it second-tier status - and the economic benefits from improved access to TPP economies are likely to be relatively minor since we already have free trade agreements with four of the ten participants.

Given those conditions, why aggressively pursue entry into the negotiations? The reason stems less from gaining barrier-free access to a handful of relatively small economies and far more about using the TPP as a backdoor mechanism to promote regulatory changes in Canada.

Internet Domain Name Land Grab More Than Just "Fools Gold"

Last week, the Internet Corporation for Assigned Names and Numbers (ICANN), the California-based non-profit corporation charged with the principal responsibility for maintaining the Internet's domain name system, revealed that it has received nearly 2,000 applications for new domain name extensions. While many applications may be abandoned or face objections that stall their approval, it seems certain that there will be hundreds of new domain name extensions in the not-too-distant future, a change that will fundamentally reshape the way we think about domain names.

The proposed extensions include hundreds of brands such as dot-NFL or dot-Gucci, new geographic extensions such dot-Brussels or dot-Quebec, and a myriad of generic extensions featuring everything from dot-app (the most popular application with 12 competing bids) to dot-wedding.

The new system faced surprising criticism from some veteran Internet watchers, who argued that the addition of hundreds of new domain name extensions was a virtual land grab, a train wreck, unnecessary, and not particularly innovative.

UN Internet Takeover Rumours Mask Bigger Governance Shortcomings

In recent months the Internet has been buzzing about the prospect of a United Nations "takeover" of the Internet, including responsibility for governance of the domain name system. The concern hit a fever pitch late last month when the U.S. Congress held hearings on the issue. A steady stream of technology companies and consumer groups expressed fears with potential U.N. and foreign government involvement and members of Congress pledged to take a strong stand against the takeover.

While a U.N. takeover would indeed be cause for serious concern, the reality is far more complex and somewhat less ominous. This issue has been festering for over 15 years and is less about whether there will be efforts at governmental control and more about which government controls.

Seeking Solutions to the Mounting Social Media Privacy Concerns

The House of Commons Committee on Ethics, Accountability and Privacy recently launched a major new study into the privacy concerns raised by popular social media sites. The study promises to canvass a wide range of perspectives as elected officials grapple with emerging privacy issues and consider whether the current legal framework provides sufficient protection.

Canadians are among the most active social media users in the world, yet the growing reliance on sites such as Facebook, Twitter, LinkedIn, and Google+ has generated unease with the privacy implications of massive data collection. I was invited to appear before the committee last week and used my time to identify four areas in need of action.

First, the government should finish what it started. It has introduced and even passed legislation that can be helpful in addressing some concerns that arise from social media, yet these initiatives have stalled short of the finish line. For example, anti-spam legislation, which received royal assent in 2010, has still not taken effect as final regulations have not been approved.

Conclusion of Copyright Debate Leaves Many What Ifs…

The decade-long Canadian copyright reform debate is nearing a conclusion as the government is slated to hold the third and final reading for Bill C-11 this week. With a majority in both the House of Commons and Senate, the Conservatives are likely to pass the bill before Parliament takes a break for the summer.

The imminent passage of the bill is already being heralded as win for creators, consumers, and businesses. There is certainly much to like -expanded fair dealing, new consumer exceptions, caps on liability to prevent multi-million dollar lawsuits against consumers, and a balanced approach to liability for Internet providers among them. Moreover, the rejection of draconian provisions demanded by some lobby groups such as website blocking or penalizing Internet users with threats of lost access is a positive development.

Yet for many copyright watchers, the bill falls just short, providing a classic example of what could have been…

What if the government had not rejected concerns from groups representing the blind, who warned that the bill's digital lock rules will make it more difficult for Canadians with perceptual disabilities to access digital content?


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