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Technology law column by Michael Geist

Canada's Net Neutrality Enforcement Failure

Two years ago, the Canadian Radio-television and Telecommunications Commission conducted a much-publicized hearing on net neutrality, which examined whether new rules were needed to govern how Internet providers managed their networks. While many Internet users remain unaware of the issue, behind the scenes Internet providers employ a variety of mechanisms to control the flow of traffic on their networks, with some restricting or throttling the speeds for some applications.

Those practices have proven highly contentious, with creator interests, technology companies, privacy rights organizations, and consumer groups all expressing fears that they may curtail innovation, invade user privacy, stifle competition, and create an uneven playing field for content distribution.  Internet providers argue that such measures are essential to provide their subscribers with a good experience at an affordable price.

The Commission unveiled its Internet traffic management practices in October 2009, establishing enforceable guidelines touted as the world’s first net neutrality regulations.  

Why Competition Holds the Key to a Broken Broadcast System

As the Canadian Radio-television and Telecommunications Commission concludes its hearing on the consolidation of the Canadian communications market into a handful of corporate giants (so-called vertical integration) and embarks on a "fact-finding exercise" on the impact of online video services, the only obvious conclusion from the hundreds of submissions and hours of debate is that Canada’s broadcast law framework is broken.

The Commission’s struggle to make sense of the changing corporate and technological landscape - alongside lobbying for new industry codes of practice and Internet regulations - is rooted in a regulatory framework premised on scarcity rather than abundance. When the law was crafted, broadcasters occupied a privileged position, since the creation of video was expensive and the spectrum needed to distribute it scarce. As a result, the government established a licensing system complete with content requirements and cultural contributions designed to further a myriad of policy goals.

CRTC Faces Charges of Bias in Online Video Consultation

Earlier this month Konrad von Finckenstein, the chair of the Canadian Radio-television and Telecommunications Commission, was asked at an industry conference about the role of consumer groups in telecom regulation. He responded that consumer groups generally do not have a problem ensuring their views are heard, but that their effectiveness depended upon getting organized and developing the necessary knowledge and expertise to fully participate in regulatory proceedings.

Yet just as von Finckenstein was providing assurances to the consumer community, the CRTC was erecting barriers to their participation in a consultation on online video services such as Netflix and AppleTV. In fact, the consultation (labeled a "fact-finding exercise") has been marred by charges of CRTC bias that has led at least one consumer group to pull out altogether.

The CRTC launched the consultation in late May after a consortium of broadcasters and cultural groups including Bell Media, Astral Media, ACTRA, the Canadian Media Production Association, and SOCAN formed the Online Broadcasting Working Group to urge the Commission to delve into the policy implications of increasingly popular Internet-based video services.

Is Internet Access A Human Right?: The Implications for the Rules of Access

Given the critical role it plays in communication, culture, and commerce, most people now recognize the importance of Internet access. A new report for the United Nations Human Rights Council takes Internet access a step further, however, characterizing it as a human right.

The report, written by Frank La Rue, the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (an internationally regarded human rights expert who was once nominated for the Nobel Peace Prize), took the political world by storm when it was released several weeks ago. 

The report explored the need to ensure that citizens have Internet connectivity and also the rules associated with that access. As a result, it was highly critical of policies that block access to content, threaten to cut off Internet access due to allegations of copyright infringement, and fail to safeguard online privacy.

Canadian Rules Rain on Cloud Music Parade

Apple has once again captured the attention of the Internet world with the unveiling of the iCloud, an online backup system that will allow users to instantly store their content on Apple computer servers so that they can be accessed anywhere from any device.

The most notable element of the iCloud is the iTunes Match service that gives users cloud-based access to their full digital music libraries. This includes songs purchased on iTunes as well as any other music files, which will be identified by Apple and made available without the need to upload the copy. Itunes Match has obtained the blessing of the major record labels, who will reportedly receive the lion's share of the service's US$24.95 annual fee.

The Apple announcement comes on the heels of newly launched music cloud services from Internet giants Amazon and Google. The Amazon Cloud Player allow users to upload their own music to Amazon's computer servers and to stream it to any device, while Music Beta by Google similarly involves uploading music files for streaming access. Neither Amazon nor Google obtained licenses for their services, relying instead on their users' fair use rights to shift their music to the "cloud."

Why Ed Fast Holds One of The Keys To Health Care Costs

Ed Fast, Canada’s new Minister of International Trade, may not be household name, yet the B.C. Minister is set to play a key role in one of Canada's top domestic priorities - health care costs. The link between international trade and health care is not immediately obvious, but a proposed trade agreement between Canada and the European Union could have big implications for the costs of pharmaceutical drugs, on which Canadians spend $22 billion annually.

The E.U. is home to many of the world's big brand name pharmaceutical companies and one of their chief goals is to extend Canada's intellectual property rules to delay the availability of lower cost generic alternatives. Earlier this year, the Canadian Intellectual Property Council, an advocacy group within the Chamber of Commerce, released a report claiming that Canada lags behind other countries and encouraging the Canadian government to follow the European example by extending the term of pharmaceutical patents and "data exclusivity."

Cabinet Minister Mandate Letters for The Digital Era

With the new Parliamentary session set to kick off later this week, new cabinet members are busy brushing up on the myriad of issues they will face in the coming months. The appointment to cabinet comes with a private mandate letter from the Prime Minister that sets out his expectations and policy goals. If Canadians focused on digital policies were given the chance to draft their own mandate letters, they might say the following:

Christian Paradis, Minister of Industry: As the new Minister of Industry, it falls to you to make the digital economy strategy initiated by your predecessor Tony Clement a reality. The centrepiece of the strategy should be universal, competitively priced broadband service. With a majority government in place, we have four years to open the market to new competitors, facilitate the introduction of new wireless broadband alternatives, encourage the market to offer fibre connections in all major markets, foster new local competitors, leverage the role of high speed research and education networks, consider using spectrum auction proceeds to fund broadband initiatives, and address anti-competitive pricing models.

Canadian Broadcasters and BDUs: Can They Compete With "Free"?

Earlier this month, Bell and Quebecor, two giants in the Canadian broadcasting and telecom landscape, became embroiled in a dispute over Sun News Network, the recently launched all-news network. At first glance, the dispute appeared to be little more than a typical commercial fight over how much Bell should pay to Quebecor to carry the Sun News channel on its satellite television package. When the parties were unable to reach agreement, Bell removed Sun News Network, leaving a placeholder message indicating "the channel has been taken down at the request of the owners of Sun News Network."

While the dispute is now before the Canadian Radio-television and Telecommunications Commission - Quebecor claims Bell is violating the legal requirement against "undue preferences"- more interesting is Bell’s claim about the value of Sun News Network signal.

According to Mirko Bibic, senior vice-president of regulatory affairs at Bell Canada, the market value of Sun News Network is zero because Quebecor makes the signal available free over-the-air in Toronto and is currently streaming it free on the Internet. Given the free access, Bell maintains that the signal no longer has a market value.

Web Surveillance Legislation Requires Study, Not Speed

With the new Parliamentary session scheduled to kick off within the next few weeks, two major initiatives will dominate the initial legislative agenda: passing a budget and introducing an omnibus crime bill that contains at least 11 crime-related bills. The prioritization of the crime legislation is consistent with the Conservative election platform, which included a commitment to bundle all the outstanding crime and justice bills into a single omnibus bill and to pass it within the new Parliament's first 100 days.

The Conservatives argue that the omnibus approach is needed since the opposition parties "obstructed" passage of their crime and justice reforms during successive minority governments. Yet included within the crime bill package is likely to be legislation creating new surveillance requirements and police powers that has never received extensive debate on the floor of the House of Commons and never been the subject of committee hearings.

The package is benignly nicknamed "lawful access," but isn’t benign. If the Conservatives move forward with their complete lawful access package, it would feature a three-pronged approach focused on information disclosure, mandated surveillance technologies, and new police powers.

Tory Majority Gives Ottawa A Crack At Breaking The Digital Logjam

The election of a majority Conservative government has generated much speculation about the future of digital policies in Canada. It is hard to project precisely what will happen; given the number of open cabinet positions it is not known whether Industry Minister Tony Clement and Canadian Heritage Minister James Moore will remain in their portfolios or move elsewhere. If they stay the course, the Conservative digital policies are strong in a number of areas.

Concerns over the lack of competitiveness in the Canadian telecom market emerged as a campaign issue and a majority government may pave the way for removing foreign ownership restrictions in the telecom market. The Conservatives have consistently focused on improving the competitive environment and opening the market is the right place to start to address both Internet access (including consumer frustration over usage based billing) and wireless services.

Addressing the foreign competition issue will be only a piece of the bigger puzzle, however. The government has yet to set targets for universal broadband access and has been mum about the possibility of a set-aside for new entrants as part of the forthcoming spectrum auction. Answers to those questions may come from the much-anticipated digital economy strategy.


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