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Technology law column by Michael Geist

An Unofficial User Guide to the Coming Copyright Bill

Media reports last week indicated that the government plans to introduce its long-awaited copyright reform bill within the next few days.  The bill is sure to spark widespread debate since all Canadians - whether consumers, creators, businesses, or educators - have a significant stake in the outcome.

The internal dynamics that led to the bill are by now fairly well known.  Industry Minister Tony Clement, emboldened by last summer’s copyright consultation that generated unprecedented public participation, argued for a forward-looking, technology neutral bill with flexibility as a core principle.  Canadian Heritage Minister James Moore advocated for a U.S.-style protectionist approach, with priority given to digital locks that can be used to limit copying, access, and marketplace competition.

With the active support of Prime Minister Stephen Harper, Moore won the fight over digital locks and the new bill will feature provisions certain to please the U.S. government and lobby groups.  Yet the bill will include far more than just tough legal protection for a digital locks.  

Here is an unofficial user's guide to the new legislation that focuses on three key issues - fair dealing, Internet provider liability, and digital locks (Internet downloading is unlikely to figure prominently in the bill).

Seven Copyright Questions for Heritage Minister Moore

With reports that a new copyright bill could be introduced this week, thousands of Canadians have been expressing concern with the government's plans, as there are mounting fears that the results from last summer's copyright consultation may be shelved in favour of a repeat of the much-criticized Bill C-61.  

The foundational principle behind C-61 was the primacy of digital locks. When a digital lock (often referred to as digital rights management or technological protection measure) is used - to control copying, access or stifle competition - the lock supersedes virtually all other rights.  The fight over the issue has pitted the tech-savvy Industry Minister Tony Clement, who has reportedly argued for a flexible implementation, against Canadian Heritage Minister James Moore, who has adopted what many view as an out-of-touch approach that would bring back the digital lock provisions virtually unchanged.

Moore has declined to comment on his position, but his approach raises some difficult questions:

CRTC of Old Re-Emerges in Music Station Case

Taking pot shots at Canada’s national broadcast regulator has practically been a national sport for many years, as observers from across the political spectrum paint the Canadian Radio-television and Telecommunications Commission as too interventionist, too luddite, too slow, or a combination of all of the above.

In recent years, the commission has worked to shed its negative reputation by increasingly adopting decisions that favour letting consumers and businesses decide broadcast winners and losers. For example, the recent fee-for-service decision promotes a negotiated settlement between broadcasters and cable companies with the CRTC betting that consumer expectations will provide sufficient incentive to ensure that local programming remains accessible to viewers.  

Yet despite the seeming preference for market-led solutions, that approach appears to have been largely forgotten in a recent decision involving a small new broadcaster devoted to emerging musical artists in Quebec.  Rather than giving consumers the opportunity to decide whether there is a need for such a station, the CRTC blocked the application for a broadcast licence in a decision that featured a spirited dissent from Quebec-based commissioner Michel Morin.

Canada's Digital Strategy's Unasked Questions: Who Leads? Who Pays?

Last week Industry Minister Tony Clement unveiled the government’s much-anticipated Digital Economy Strategy consultation.  The consultation is slated to run for two months and includes an online forum, face-to-face meetings, and a 40-page document that sets out key areas of concern. Five areas for discussion are identified: capacity to innovate, building a world-class digital infrastructure, growing the ICT industry, creating digital content, and building digital skills.

Skeptics will argue that the consultation is long overdue or perhaps even comes too late. Canada has inarguably lost considerable ground in comparison with many other countries around the world that were quicker to identify and implement digital strategies.

While the delays have been marked by a gradual hollowing-out of the Canadian tech sector and sliding global rankings on network and wireless connectivity, Clement has firmly established himself as the most committed Industry Minister on digital issues since John Manley in the late 1990s.

Piracy Haven Label Case of Rhetoric Over Reality

In the wake of the Toronto Star reports exposing the activities of former MP Rahim Jaffer, lobbying has been the talk of Ottawa for the past month.  The incident has had an immediate impact on lobbying regulations, with the Conservatives and Liberals jostling over who can introduce tougher disclosure measures. The changes may plug a few loopholes, yet the reality is that lobbying efforts are not always the subject of secretive meetings with high-level officials.

Consider the intensive lobbying effort on promised intellectual property reform.  In recent weeks, those efforts have escalated dramatically, with most activities taking place in plain view. Scarcely a week goes by without a major event occurring - last week it was a reception sponsored by the Canadian Private Copying Collective, the week before an event hosted by the Entertainment Software Association of Canada, and the week before that the Juno Awards attended by several cabinet ministers and MPs.

ACTA: Why You Should Still Care

After years of secrecy, the eighth round of talks aimed at drafting an international treaty called the Anti-Counterfeiting Trade Agreement (ACTA) recently concluded in New Zealand - and in the face of public pressure, a version of the text was subsequently made available to the public. The ACTA is neither a trade agreement nor one focused primarily on counterfeiting, but a copyright deal featuring provisions on Internet service provider and Internet company liability, DMCA-style notice and takedown requirements, legal protection for digital locks, and requirements for statutory damages that could result in millions in liability for non-commercial infringement - even heightened searches at border crossings.

Privacy Takes Big Step Toward Global Enforcement

Last week the talk of the privacy world was news that 10 privacy and data protection commissioners - led by Canadian Privacy Commissioner Jennifer Stoddart - had released a public letter to Google CEO Eric Schmidt, expressing concern that the Internet giant was forgetting its privacy responsibilities.  

The letter, also signed by the heads of privacy agencies from France, Germany, Ireland, Israel, Italy, the Netherlands, New Zealand, Spain and the United Kingdom, focused on the recent introduction of Google Buzz, a service that offered new social media capabilities.  It attracted the wrath of users and privacy advocates after Google automatically assigned users a network of "followers" from among people with whom they corresponded most often on Gmail.  Google quickly altered the offending features, but the damage was clearly done, as privacy commissioners from around the world used the incident as the basis for a shot across the company’s bow.

Open Government Moving in Parallel But Opposite Directions

Suzanne Legault, Canada’s Interim Information Commissioner, and Michael Mulley, a Montreal-based software programmer, may occupy different worlds, but last week both placed an important spotlight on open and transparent government.

Legault is responsible for administering the Access to Information Act and last week her office warned that inadequate resources and lengthy delays were causing enormous damage to access to information rights in Canada. Legault released a 154-page report that gave below average or failing grades to the majority of the 24 government departments she reviewed. 

The implication of a broken access to information system extends to virtually every policy area.  For example, Canadian Heritage and Industry Canada typically lead on policies involving broadcasting and new media.  While Industry Canada received a solid “B” grade, handling a 93% increase in requests relatively smoothly, the first review for Canadian Heritage Minister James Moore’s department yielded an “F” grade. 

Talks on Secret Copyright Treaty Spring a Leak

Negotiations on the Anti-Counterfeiting Trade Agreement resume today in Wellington, New Zealand, with Canada, the United States, the European Union, and a handful of other countries launching the eighth round of talks. While even the most optimistic ACTA supporters do not expect to conclude an agreement before the end of the year, the next five days may prove to be a pivotal point in the negotiations since over the past several weeks, there have been two major leaks that could dramatically alter the still-secret discussions.

The first leak was an internal Dutch government document chronicling the positions of each ACTA participant on treaty transparency.  The level of ACTA secrecy is highly unusual for an agreement focused on intellectual property issues, leading to a steady stream of parliamentary resolutions and political demands for transparency coming from around the globe.

The standard response to transparency criticisms from many governments (including Canada) was to claim that they favoured releasing the ACTA text to the public, but that other unnamed countries did not.  Since there was no consensus, the text could not be released.

State Farm Challenges Constitutionality of Canadian Privacy Law

Later this month, the Federal Court of Canada will hear a case in Halifax that threatens Canada's privacy law framework.  State Farm Mutual Automobile Insurance Co. is contesting the constitutional validity of Canada's private sector privacy legislation (PIPEDA), arguing it oversteps the federal government's jurisdictional power.  If successful, PIPEDA would no longer apply to thousands of Canadian businesses and new legislation such as the Electronic Commerce Protection Act (ECPA) would be imperilled.

The case stems from a dispute over an insurance claim arising from a March 2005 automobile accident. Gerald Gaudet, the injured party, asked State Farm to provide copies of all names, addresses, and phone numbers of anyone to whom it disclosed his personal information (State Farm had used a private investigator to conduct surveillance on Gaudet).  After State Farm refused to disclose the information, Gaudet filed a complaint with the Privacy Commissioner of Canada.

The Privacy Commissioner proceeded to launch an investigation into the case, asking State Farm to provide it with the requested information. The insurance company again refused, leading to the Federal Court case.


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