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Technology law column by Michael Geist

Election 2011: The Digital Policy Surprises

Digital policies may not have played a starring role in the current election campaign, but neither have they been ignored. For the first time, all major political parties have devoted a section of their platform to digital issues and both the Liberals and New Democrats ran events focused on digital policy. While there is general agreement on the key issues - topping the list are Internet access and pricing, telecom competition, copyright, and the privacy-security balance - each party offers a surprise that gives some insight into its digital policy priorities.

The Conservatives

Perhaps owing to its five-year track record, the Conservatives digital policy platform is the least detailed of the three parties. Many of its positions simply re-affirm a commitment to stay the course - continuation of funding for rural broadband projects, the reintroduction of Bill C-32 for copyright reform, and vocal opposition to the implementation of an iPod tax.

Disruptive Internet Streaming May Lead to New Canadian Broadcast Bargain

The month of March may be associated with spring, the return of baseball, or a weeklong school holiday in some households. For me it is all about "March Madness", the annual U.S. college basketball tournament that wraps up this week following nearly a month of shocking finishes and Cinderella stories.  

The tournament provides hours of overlapping games with television networks zipping between the closest ones. This year's tournament has been as exciting as ever, yet the coverage has changed. In Canada, TSN purchased the rights to broadcast the tournament and owing to an already packed schedule, proceeded to shift the games between channels.

Initially out of frustration and later out of convenience, I shifted my tournament viewing to the Internet. The National Collegiate Athletic Association, which runs the tournament, offered a live streaming Internet feed of all the games as well as an iPhone app that provided good quality video. All the games - including the U.S. commercials - were readily available to Canadians without the need for a cable television subscription or a Canadian broadcaster.

How to Vote for the Internet: Election Your Chance To Ask About Internet Policy

The federal election marks the end for at least five government bills focused on Internet and digital policy. Bills on privacy, copyright, and Internet surveillance died on the order paper and will have to start from scratch when a new government is elected in May. Moreover, the much-anticipated digital economy strategy, set for release this spring, has likely been delayed until the fall at the very earliest.

While the legislative process may be on hold, the election campaign offers Canadians the chance to raise the profile of Internet and digital issues even further by voting for the Internet. The Internet is obviously not a political party, but a vote for the Internet means asking candidates for their views on the country’s top digital issues:

1. Global surveys consistently give Canada a middling to poor rank for wireless and broadband Internet services. What would you do to enhance Canada’s Internet competitiveness?  How would you ensure that all Canadians have access to affordable broadband networks?

Canadian Backed Report Says Piracy a Market Failure, Not Legal One

Trademark and copyright holders frequently characterize piracy as a legal failure, arguing that tougher laws and increased enforcement are needed to stem infringing activity. But a new global study on piracy, backed by Canada's International Development Research Centre, comes to a different conclusion. Following several years of independent investigation in six emerging economies, the report concludes that piracy is chiefly a product of a market failure, not a legal one.

The Social Science Research Council launched the study in 2006, identifying partner institutions in South Africa, Russia, Brazil, Mexico, Bolivia, and India to better understand the market for media piracy such as music, movies, and software. The result is the most comprehensive analysis of piracy to date.

The 440-page report challenges many of the oft-repeated claims about piracy and how address it. For example, it finds that contrary to repeated claims that there are strong links between piracy and organized crime, no such link exists. Instead, the authors conclude that “decades-old stories are recycled as proof of contemporary terrorist connections, anecdotes stand in as evidence of wider systemic linkages, and the threshold for what counts as organized crime is set very low.”

Internet Governance Battle Heats Up as Governments Demand Greater Powers

A simmering battle over governance of the Internet is set to take centre stage in California this week as the Internet Corporation for Assigned Names and Numbers (ICANN), a California-based non-profit corporation charged with the principal responsibility for maintaining the Internet's domain name system, holds one of its regular meetings in Silicon Valley.

Since its creation in 1998, ICANN has faced a wide range of critics - Internet users frustrated at the lack of accountability, business groups concerned that the policy making process is too slow and uncertain, and governments wondering why matters related to the Internet are vested in a private organization and not an entity such as the United Nations.

Yet this week ICANN faces one of its greatest challenges to its independence.  Ironically, it comes directly from the government that created it - the United States.

The source of the dispute arises from the longstanding efforts to establish new top-level domains. In the 1980s, seven generic top-level domains, including dot-com, dot-net, and dot-org, were established.  Those domains remain among the most popular on the Internet, with millions of registrations worldwide.

Do We Still Need Foreign Ownership Restrictions in Canadian Broadcasting?

In recent weeks, a political consensus has begun to emerge on the benefits of removing restrictions on foreign ownership in the telecommunications sector. Implementing such reforms faces at least one major political stumbling block that is only tangentially related - the spillover effect onto the broadcasting sector.

As Canadian telecom operators, broadcasters, and broadcast distributors become single entities - Rogers combined with City-TV, Quebecor’s ownership of Videotron, Sun Media, and Groupe TVA, Shaw having purchased Canwest Global, as well as Bell in the process of merging with CTVglobemedia - the biggest hurdle may well be fears about the cultural impact of opening up telecom companies to foreign buyers.

While the link between broadcasting and Canadian culture is obvious, the connection between Canadian broadcasting ownership and Canadian culture is tenuous at best.

Canadian law currently features both foreign ownership restrictions and content requirements. The foreign ownership rules generally limit licensees to 20 percent foreign ownership (up to 33 percent for a holding company). This covers all types of broadcasters including television, radio, and broadcast distributors.

U.S. Government Funding For Open Education Materials a "Game Changer"

The technology community is fond of referring to announcements that fundamentally alter a sector or service as a "game changer". Recent examples include the debut of the Apple iTunes store in 2003, which demonstrated how a digital music service that responds to consumer demands was possible, and Google’s Gmail, which upended web-based email in 2004 by offering 1 gigabyte of storage when competitors like Microsoft's Hotmail were providing a paltry 2 megabytes.

Last month, the U.S. government announced its own game changer, though it attracted far less attention than iTunes or Gmail. Led by the Departments of Labor and Education, it committed US$2 billion toward a new program to create free online teaching and course materials for post-secondary programs of two years or less.

Spectrum Consult Could Form Cornerstone of Digital Policy for Next Decade

As public frustration with the state of telecommunications services such as Internet access and wireless competition mounts, a relatively obscure government consultation on spectrum deserves far more attention. Last November, Industry Canada released a Consultation on a Policy and Technical Framework for the 700 MHz Band and Aspects Related to Commercial Mobile Spectrum. While the title alone is likely enough for most to look elsewhere, no issue will have a greater impact on the next ten years of Canadian digital policy.

The spectrum consultation is linked to this year’s digital television transition as Canadian broadcasters will switch from analogy to digital transmissions by August 31, 2011. The move to digital has implications for broadcasting (some Canadians may be unable to access digital over-the-air signals), but the bigger policy issues stem from what happens to the spectrum that will freed-up as part of the changeover.

This 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.

Weak Copyright Laws? Recording Industry Files Massive Lawsuit Against isoHunt

As the debate over Canada’s copyright reform legislation, Bill C-32, continues to rage before a legislative committee, one of the most frequently heard claims is that tough reforms are needed to counter Canada’s reputation as a “piracy haven”. The presence of several well-known BitTorrent sites, most notably B.C.-based isoHunt, is cited as evidence for Canada’s supposedly lax laws that the industry says leaves it powerless.

When the bill was first introduced last June, the Canadian Recording Industry Association stated that “stronger rules are also needed to rein in Canadian-based peer-to-peer websites, which, according to IFPI, have become ‘a major source of the world's piracy problem’.”

Politicians have taken note of the concerns. Industry Minister Tony Clement said the new bill will target “wealth destroyers” and Liberal MP Dan McTeague has lamented that “the very existence of an isoHunt in Canada is problematic and is very much the result of what appears to be a legislative holiday for companies and other BitTorrent sites.”

Creator Groups Trade Short Term Gain for Long Term Pain on BCE-CTV Merger

This week the Canadian Radio-television and Telecommunications Commission will hold hearings on Canada’s biggest media and communications merger – BCE Inc. and CTVglobemedia Inc.  The merger will combine the country’s biggest telecom provider, private broadcaster, Internet provider, and second largest wireless provider into a single powerhouse.  

The implications are enormous, yet in stark contrast to a similar recent merger in the United States between cable giant Comcast and broadcaster NBCU, the competition concerns will take a back seat to the “benefits package” that BCE must pay to the Canadian cultural community.

The U.S. merger resulted in a year-long review by the Federal Communications Commission (the CRTC’s counterpart) and the Department of Justice (DOJ).  The DOJ alone interviewed more than 125 companies and individuals in the industry and reviewed over one million documents from the merged companies.

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