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Technology law column by Michael Geist

Critics Misjudged Power of Digital Advocacy

The new year is less than three weeks old, but the Canadian Internet story of 2010 may have already taken place. Ridiculed by political parties and analysts, the growth of the Canadians Against Proroguing Parliament Facebook group, which now has more than 200,000 members, provides the clearest indicator yet of how poorly the Canadian political community understands social media and digital advocacy.

When the Prime Minister announced he was proroguing parliament in the midst of the holiday season, political commentators applauded the tactic, confident that few Canadians would notice or care.  In less than three weeks, Christopher White, a university student from Alberta, proved the experts wrong, building the largest Facebook group in the country, one that's the focal point for national discussion and voter discontent.  

As the group began to take flight, it was surprising to see political leaders and analysts blithely dismiss the relevance of Facebook advocacy. Editorials pointed to other large groups to demonstrate the group's irrelevance, noting that joining a Facebook group was too easy - just click to join - to mean much of anything.

This represents a shocking underestimation of the power of digital advocacy, which today is an integral part of virtually every political or business advocacy campaign.

Shutting Down Yes Men Trades One Hoax for Another

Last month, the Canadian delegation at the Climate Change Conference in Copenhagen found itself targeted by the Yes Men in a widely publicized hoax.  The well-known activists satirized the Canadian government’s position on the environment by launching a pair of phoney websites that looked official but promoted different policies.

The hoax attracted considerable media attention, prompting Prime Minister's Office spokesman Dimitri Soudas to label it a childish prank.  Soon after, Canadian officials quietly set out to shut down the two websites.  

What followed creates a cause for concern, because Environment Canada appears to have misrepresented the harms posed by the sites in an effort to force them offline without a court order.

Ten Players Who Will Shape Tech Law and Policy in 2010

Predictions about future technology law and policy developments are always fraught with uncertainty, yet identifying the key players is a somewhat easier chore.  Although Parliament is not scheduled to resume until March, the following 10 are likely to lead the way in Canada in the coming year.

Tony Clement, federal Industry Minister.  From anti-spam legislation to the national copyright consultation, Clement demonstrated a keen interest in technology issues during his first year as industry minister.  2010 should be no different, with privacy reform legislation, a new copyright bill, and rules for another wireless spectrum auction all on the agenda.  To top it off, Clement has sent strong signals that he wants to forge ahead with a long-overdue national digital strategy.

James Moore, federal Canadian Heritage Minister.  Young, bilingual, and tech-savvy, Moore broke the mould for a minister of Canadian heritage. This year will present Moore with at least two highly contentious issues likely to leave many unhappy: copyright reform and fee-for-carriage for television broadcast signals.

The Letters of the Law: 2009 in Tech Law and Policy

The past twelve months in law and technology were exceptionally active, with new legislation, Canadian Radio-television and Telecommunications Commission hearings, national consultations, and very public battles over digital issues. A look back at 2009 from A to Z:

A is for the Anti-Counterfeiting Trade Agreement, the secret copyright treaty that generated opposition at home and abroad as details on proposed language leaked out.

B is for Chet Baker, the former jazz great and current lead plaintiff in a $6 billion copyright class action lawsuit filed against the Canadian recording industry for its failure to pay artists for the use of their work.

C is for the Conference Board of Canada, which withdrew three intellectual property reports after acknowledging they contained plagiarized material.

D is for drugs for Africa legislation, which unexpectedly passed second reading in the House of Commons and will be considered by a committee next year.
E is for eBay power sellers, who faced an aggressive campaign by the Canada Revenue Agency to collect unpaid GST.  The campaign followed a successful legal effort to force eBay to disclose the sellers' identities.

EU Demands for Trade Deal Would Reshape Canadian IP Law

More than 20 years ago, Canada negotiated a free trade agreement with the United States that attracted enormous public attention.  The first FTA - to be followed a few years later by the North American Free Trade Agreement that brought Mexico into the mix - played a pivotal role in a national election and ultimately resulted in dramatic changes to the economy and Canadian law.

Earlier this year, Canada and the European Union announced plans to negotiate a Comprehensive Economic and Trade Agreement (CETA), possibly the biggest Canadian trade negotiations since NAFTA.  The first round of talks took place in Ottawa in October, yet the treaty has generated practically no public scrutiny.

That may change following the leak last week of the European Union's proposed intellectual property chapter.

Simply put, the EU demands target the entire Canadian economy.  They include increased patent protection for pharmaceutical companies, heightened support for famous trademarks, and new rules for industrial designs.  The EU is also keen on restrictions on the use of geographic indications, which would limit the ability of Canadian wine and cheese makers to use such words as champagne or parmesan.

Canada Dragging Its Feet on Open Data Initiatives

Earlier this year, I wrote about the budding momentum behind governments making their data more readily available to the public for reuse.  Open data initiatives have generated dozens of commercial and non-commercial websites that add value to the government data.  

Some make the data more understandable by using interactive maps to provide visuals about where activities are taking place (e.g. government stimulus spending).  Others make the data more accessible by offering services to customize or deliver government information (e.g. postal codes to allow public interest groups to launch advocacy campaigns).

The crucial aspect behind these initiatives is that the government makes the data available in open formats free from restrictive licences so companies and civil society groups can create innovative websites, tools, and online services.

Last week, the global open data movement received a big boost in three countries that is sure to leave Canadians wondering why their government has been so slow to move on this issue.

Canadian Recording Industry Hit With $6 Billion Copyright Lawsuit

Chet Baker was a leading jazz musician in the 1950s, playing trumpet and providing vocals. Baker died in 1988, yet he is about to add a new claim to fame as the lead plaintiff in possibly the largest copyright infringement case in Canadian history.  His estate, which still owns the copyright in more than 50 of his works, is part of a massive class-action lawsuit that has been underway for the past year.

The infringer has effectively already admitted owing at least $50 million and the full claim could exceed $6 billion. If the dollars don’t shock, the target of the lawsuit undoubtedly will: The defendants in the case are Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada, the four primary members of the Canadian Recording Industry Association.

The CRIA members were hit with the lawsuit in October 2008, after artists decided to turn to the courts following decades of frustration with the rampant infringement (I am adviser to the Canadian Internet Policy and Public Interest Clinic, which is co-counsel, but have had no involvement in the case).

Broadcaster Plan Involves More Than Just Fee-For-Carriage

In the weeks leading to the Canadian Radio-television and Telecommunications Commission hearing on broadcasting licences, Canadians were inundated with splashy advertising campaigns claiming that new fees for local signals were either a TV tax or would save local television.  With all of the major broadcasters and cable companies appearing before the commission, the fee-for-carriage (or value-for-signal) issue unsurprisingly took centre stage at last week’s hearing.

Yet those convinced that the broadcaster plan was limited to a new fee were in for a rude awakening.  Fee-for-carriage is only part of the story, as broadcasters are also seeking to block U.S. signals, leave some Canadian communities without over-the-air television, and delay the transition to digital television transmission until 2013.

The prospect of blocking U.S. television signals will come as a shock to many, but both CTV and Canwest, Canada's two largest private broadcasters, have asked the CRTC to establish a new program deletion policy.  

Copyright Consultation Provides Blueprint for Reform

This past summer, Industry Minister Tony Clement and Canadian Heritage Minister James Moore successfully completed the first national public consultation on copyright policy in eight years. While there were a few inevitable hiccups, the consultation is rightly viewed as among the most inclusive, transparent, and accessible efforts in recent memory.   By leveraging social media and the Internet as well as investing considerable time to meet with Canadians from coast to coast, the Ministers helped fuel unprecedented participation with over 8,000 individuals and organizations taking part over the eight-week process.

The government is still in the midst of posting all the submissions, but with thousands now online, it is not too early to begin drawing some lessons.  In fact, with copyright legislation promised for early next year, the blueprint for future reforms lies in the emerging consensus found in the thousands of consultation submissions.

What does the consultation teach us?  There are at least eight conclusions of note:

Canadian Telco Ownership Rules From By-Gone Era

Corporate structures and loan agreements are rarely the stuff of public interest, yet last month they attracted considerable attention in a case involving Globalive, a new wireless company vying to shake up Canada’s telecommunications industry.  Operating as Wind Mobile, the company paid hundreds of millions of dollars in 2008 to scoop up spectrum to enable it to operate as a new national wireless carrier.

Bell Canada, Telus Corp., and Rogers Communications, the big three incumbent carriers, unsurprisingly opposed the new rival.  First they lobbied against a set-aside of spectrum for new entrants. When that failed, they argued Globalive failed to comply with the Telecommunications Act's foreign control restrictions.

Last month, the Canadian Radio-television and Telecommunications Commission agreed. While Industry Canada previously concluded the company met the Canadian control requirements for the purposes of the Radiocommunications Act when it bid for spectrum, the CRTC concluded that its ownership and control structure do not meet the legal requirements to operate as a wireless carrier.  


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