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Technology law column by Michael Geist

Broadcasting Policy Without A Net

After months of intense lobbying and marketing that pitted broadcasters ("Local TV Matters") against cable and satellite companies ("Stop the TV Tax"), the Canadian Radio-television and Telecommunications Commission weighed in last week with its much-anticipated broadcasting regulatory policy decision.

Broadcasters were generally viewed as the short-term winners, since the CRTC opened the door to negotiations on a new fee for local television signals, subject to a court ruling confirming the Commission's jurisdiction to implement such an approach.  That left some very unhappy - cable and satellite companies warned of increased costs, while the CBC lamented that it was a "dark day" for public broadcasters after it was excluded from the proposed negotiating process.

Angus Shakes Up Copyright Landscape

Charlie Angus, the NDP Member of Parliament and musician, has a reputation for speaking his mind.  Last week, he did more than just speak out.  Angus single-handedly shook up the Canadian copyright landscape by promoting two reforms - an extension of the private copying levy to audio recording devices such as iPods and greater flexibility in the fair dealing provision, the Canadian equivalent of fair use.

The iPod levy proposal sparked immediate controversy.  Canada slapped a private copying levy on blank media such as CDs more than ten years ago.  It has generated hundreds of millions of dollars, but previous attempts to extend the levy to devices were struck down by the courts as outside the scope of the law.

The Angus bill would amend the law by expressly bringing devices within the levy scheme. The problem is that few devices these days are limited to audio.  In a world dominated by multipurpose devices that play audio and video, run applications, and provide phone service, it is next to impossible to separate the audio functionality.  In other words, the levy ends up potentially covering everything - iPods, iPhones, BlackBerrys, Androids, iPads, and even personal computers. 

Bookseller Restrictions About Competition, Not Culture

Eight years ago, the federal government faced a hot-button cultural policy issue as online retail giant Amazon.com, which was already selling millions of dollars of books to Canadians from its U.S.-based site, sought entry into the Canadian market.  Canadian investment regulations posed a significant barrier, however, since the law required government approval for foreign investment in the book publishing and distribution sectors.

Amazon was ultimately granted a form of non-entry entry.  The company established Amazon.ca, but did not set up shop in Canada.  Instead, it outsourced distribution to Canada Post, enabling the government to rule that the company’s plans fell outside the book distribution restrictions.

Amazon.ca is now well-entrenched in the Canadian e-commerce landscape and seeks to create its own Canadian distribution channel.  The plan requires government approval, which recently led to predictable outcries from the Canadian Booksellers Association.  The CBA wrote to Canadian Heritage Minister James Moore - who must decide the issue - to urge him to reject Amazon’s application.  

Casting a Vote Against Internet Voting

With the increasing shift from analog to digital, some elections officials are unsurprisingly chomping at the bit to move toward Internet-based voting.  Last year, Elections Canada officials mused about the possibility of online voting trials, noting the potential benefits of increasing voter participation, particularly among younger demographics.

More recently, the province of Alberta opened the door to incorporating new technologies into their voting processes as part of an electoral reform package.  New trials would require the approval of a legislative committee, but the province's Chief Electoral Officer acknowledged that online voting may be coming, noting "online voting is something that's on the forefront of people's minds. . . people say, 'I can do my banking online, but I can't do my voting online'."

The enthusiasm for Internet voting is understandable. At first blush, there is a certain allure associated with the convenience of Internet voting, given the prospect of increased turnout, reduced costs, and quicker reporting of results.  Moreover, since other security sensitive activities such as banking and health care have gravitated online, supporters argue that elections can't be far behind.

Yet before rushing into Internet voting trials, the dangers should not be overlooked.

Parliamentary Restart Chance to Prioritize Digital Agenda

Parliament resumes this week following the unexpected - and unexpectedly contentious - decision by Prime Minister Stephen Harper to reset the legislative agenda through prorogation.

The House of Commons may have been quiet but the calls for a national digital strategy have grown louder in recent months.  Last week, the International Telecommunications Union issued its annual global measurement of the information society, which served again to highlight Canada’s sinking global technology ranking.  Canada ranked 21st (down from 18th in 2007) in its ICT Development Index, which groups 11 indices including access, use, and technology skills.  

Canada’s sliding global ranking reflects 10 years of policy neglect.  Other countries prioritized digital issues while leaders here from all parties have been content to rest on the laurels of the late 1990s, only to wake up to a new, less-competitive reality in 2010.

Industry Minister Tony Clement has spoken frequently about the need for a national digital strategy, but concrete policies have been slow in coming.  The parliamentary restart presents another opportunity for action.  Given the failure to date to articulate a comprehensive digital strategy, perhaps a different approach might work.

Technology Giants Defend Canadian Copyright Law

Each April, the United States issues the Special 301 Report, which examines the intellectual property laws of its main trading partners.  For the past 15 years, Canada has been included on the watch list of countries the U.S. believes need reform.

As the U.S. prepares its 2010 edition, for the first time it invited the public to provide their comments on the process and the link between intellectual property and trade policy.  Among the hundreds of submissions, one from the Computer and Communications Industry Association stands out as critically important to Canada.

The CCIA represents a who's who of the technology business world, with a membership roster that includes Microsoft, Google, T-Mobile, Fujitsu, AMD, eBay, Intuit, Oracle, and Yahoo.  While critics of Canadian policy might expect these business heavyweights to chime in with their own criticisms, they took the opposite approach. 

Canadian ISPs Fall Short in Meeting Net Neutrality Rules

Last fall, the Canadian Radio-television and Telecommunications Commission issued its much-anticipated Internet traffic management ruling, better known as the net neutrality decision. The case attracted national interest as the CRTC established several key requirements for Canada’s Internet providers.

These included new transparency obligations that forced ISPs to disclose their network management practices, such as why the practices were introduced, who will be affected, when it will occur, and how it will impact users' Internet experiences (down to the specific impact on speeds). The CRTC also opened the door to complaints about network management practices by establishing a test that any harm to users be as little as reasonably possible.

Several months later, Canada's ISPs have had ample time to comply with the new requirements, yet a review of the policies from the biggest ISPs - including Bell, Canada Rogers Communications Inc., Shaw Communications Inc., Telus, Cogeco, Inc. and Groupe Vidéotron - reveals a decidedly mixed bag.

Ontario Court Rules Consumers Can't Click Away Class Action Rights

In 2004, Ian Andrews purchased a Dell laptop computer for $1,700.  About 2 1/12 years later, the computer began to malfunction, periodically shutting down unexpectedly. Stuck with a problem computer that was past the standard warranty period, Andrews complained to Dell.  The computer giant responded that the online contract governing the initial purchase required him to resolve the dispute by arbitration.

Andrews recognized this was not a realistic approach, later stating that as a university student he was not in a financial position to retain counsel to support an arbitration claim. Instead, he chose a different course of action, suing the company as part of a class action lawsuit that brought together thousands of consumers experiencing similar problems.

Dell challenged the class action suit, but last month the Ontario Court of Appeal sided with Andrews, ruling that it could proceed.

National Film Board Unreels Online Smash Hits

In recent years, Canadians have become increasingly accustomed to hearing about Internet success stories elsewhere with fewer examples of homegrown initiatives. However, an unlikely Canadian online video success has emerged recently that has not received its due - the National Film Board of Canada’s Screening Room. 

The NFB may never replace YouTube in the minds of most when it comes to Internet video, but a series of innovations have highlighted the benefits of an open distribution model and the potential for Canadian content to reach a global audience online.

Last year, just months before the NFB celebrated its 70th anniversary, it launched the NFB Screening Room, an online portal designed to make its films more readily accessible to Canadians and interested viewers around the world.  To meet its objective, it committed to be as open, transparent, and accessible as possible, including making the films freely available and embeddable on third party websites.

Three Strikes and You're Out System Would Come At a Big Price

Canadian officials travel to Guadalajara, Mexico this week to resume negotiations on the still-secret Anti-Counterfeiting Trade Agreement.  The discussion is likely to turn to the prospect of supporting three-strikes and you’re out systems that could result in thousands of people losing access to the Internet based on three allegations of copyright infringement. Leaked ACTA documents indicate that encouraging the adoption of three-strikes - often euphemistically described as "graduated response" for the way Internet providers gradually send increasingly threatening warnings to subscribers - has been proposed for possible inclusion in the treaty.

While supporters claim that three-strikes is garnering increasing international acceptance, the truth is implementation in many countries is a mixed bag.  Countries such as Germany and Spain have rejected it, acknowledging criticisms that loss of Internet access for up to a year for an entire household is a disproportionate punishment for unproven, non-commercial infringement.

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