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Technology law column by Michael Geist

Copyright Bill Hits the Home Stretch

Days after the Conservative government introduced its copyright reform bill in June 2010, Canadian Heritage Minister James Moore spoke out in support of the legislative package by notoriously labeling critics as "radical extremists" who should be confronted until "they are defeated." This week, the copyright bill hits the home stretch as the Bill C-11 legislative committee conducts its final "clause-by-clause" review.

The bill has been a subject of debate for nearly 20 months and over the course of that period, there has been a surprising role reversal. Moore's vision of strong support from copyright lobby groups has been replaced by demands to overhaul the legislation with a broad array of extreme measures, while the supposed critics - library groups, educators, consumer associations, and individual Canadians - have endorsed much of the legislation with only requests for modest changes to the controversial digital lock provisions.

This certainly wasn't the scenario Moore and the government envisioned when then Bill C-32 (which later became Bill C-11) was tabled. Groups representing the music, movie, and software industries quickly thanked the government for moving on the copyright file and pledged to support the bill.

All Your Internets Belong To US, Continued

Imagine a scenario in which a country enacts a law that bans the sale of asbestos and includes the power to seize the assets of any company selling the product anywhere in the world. The country tests the law by obtaining a court order to seize key assets of a Canadian company, whose operations with hundreds of employees takes a major hit. The Canadian government is outraged, promising to support the company in its efforts to restore its operations.

Last week, this scenario became reality, though the product was not asbestos and the Canadian government has yet to respond. The case involves Bodog.com, a Canadian-owned online sports gaming site and the country doing the seizing was the United States. Supporting online gaming operations will undoubtedly make governments somewhat squeamish, but the broader implications of last week’s seizure touch on millions of websites and Internet companies who now find themselves subject to U.S. jurisdiction.

Bodog.com and its owner, Canadian Calvin Ayre, was one of the world’s largest sports gambling operations, employing hundreds of people in Canada and Costa Rica. Last November, its free gaming site, Bodog.net, signed a three-year sponsorship deal with the Canadian Football League.

Searching for Compromise on Online Surveillance

The introduction of Internet surveillance legislation last week generated an immediate storm of outrage. Fueled by Public Safety Minister Vic Toews’ comments that critics of the legislation were “siding with child pornographers,” the bill was slammed by commentators on both the right and the left who decried the dangers of new surveillance powers and mandatory disclosure of personal information without court oversight.

The public concern should not have come as a surprise. The push for new Internet surveillance capabilities goes back to 1999, when government officials began crafting proposals to institute new surveillance technologies within Canadian networks along with additional legal powers to access surveillance and subscriber information. There have been several attempts at passing lawful access legislation, but each has died on the order paper. 

How the CRTC Helped to Put An End to Internet Throttling

Hockey may be Canada’s national pastime, but criticizing the Canadian Radio-television and Telecommunications Commission (CRTC) surely ranks as a close second. From the substitution of Canadian commercials during the Super Bowl broadcast to the Canada’s middling performance on broadband Internet services, the CRTC is seemingly always viewed as the target for blame.

Yet if the commission is criticized (sometimes wrongly) when it makes mistakes, it surely deserves kudos when it gets things right. That is the case on the thorny issue of net neutrality, which only a few years ago seemed destined to become mired in a never-ending battle between regulation-averse telecom companies and mounting public calls for government intervention.

Instead, the CRTC took carriage of the file, established widely praised guidelines, and after some prodding over weak enforcement, pushed the industry to the point that Internet traffic shaping – often described as throttling – will soon be a thing of the past in Canada.

Crafting Copyright Policy to Create a Competitive Advantage

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.

Keeping Score of Canada’s Spectrum Auction

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.

The Day the Internet Fought Back

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.

Why My Website Went Dark Yesterday

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.

Are Canada's Digital Laws Unconstitutional?

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.

Crystal Ball Gazing at the Year Ahead in Tech Law and Policy

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.

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