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Technology law column by Michael Geist

Secret Copyright Treaty Marks End to Made-in-Canada Policy

Last week Canadian officials travelled to Seoul for the latest round of closed-door negotiations on an international treaty called the Anti-Counterfeiting Trade Agreement (ACTA).  While battling commercial counterfeiting would seem like a good idea, the ACTA process has been marked by unprecedented secrecy as well as leaks revealing that the treaty is really about copyright rather than counterfeiting.

From the moment the talks began last year, observers noted the approach was far different from virtually any other international treaty negotiation.  Rather than negotiating in an international venue such as the United Nations and opening the door to any interested countries, ACTA partners consisted of a small group of countries (Canada, United States, European Union, Japan, Korea, Australia, New Zealand, Mexico, Morocco, and Singapore) meeting in secret and opposed broadening the process.

The substance of the treaty was also accorded the highest level of secrecy.  Draft documents were not released to the public and even the locations of negotiations were often kept under wraps.  In fact, the U.S. government refused to disclose information about the treaty on national security grounds.    

Consumer Choice The Key To Solving Fee-For-Carriage Fight

For the past two months, Canadians have been subjected to a non-stop marketing campaign pitting two deep-pocketed industries - broadcasters and broadcast distributors - against each other.  Television and radio commercials, full-page newspaper advertisements, websites and Twitter posts all seek to convince the public that new fees for local television signals are, depending on your perspective, either a TV tax or crucial funding to save local television.

Broadcasters claim some local TV stations will close if they do not receive millions in additional fees from cable and satellite companies as compensation for distributing their signal.  Cable and satellite companies leave little doubt they will pass along any new fees - possibly as much as $10 per month per subscriber - to their customers. The additional fees inevitably will not come from the bottom lines of cable and satellite companies, but rather from the pockets of consumers.

While the reaction for many Canadians might be sensibly to tune out the entire mess (today is the deadline for comments), politicians and regulators will still be left seeking a solution. In fact, some politicians have pledged to support local television, but also promised to avoid new consumer costs.  Can these two positions be reconciled?

Perhaps.

Net Neutrality in Canada Still a Work in Progress

The release last week of the Canadian Radio-television and Telecommunications Commission's report on Internet traffic management - known as the net neutrality decision - attracted national attention. Canadians, Internet service providers, and politicians debated whether the regulator had struck the right balance in addressing how ISPs manage Internet traffic.

While some headlines seemed to suggest that the CRTC has given Canada's ISPs the green light to do as they please, the reality is that the decision establishes several notable requirements and restrictions.  

First, the commission adopted a new test to determine reasonable traffic management practices.  Where a consumer complains, ISPs will be required to describe their practices, demonstrate their necessity, and establish that they discriminate as little as possible.  The CRTC added that targeting specific applications or protocols may warrant investigation and slowing down time-sensitive traffic likely violates current Canadian law.

Canadian Universities Too Close Minded on Open Access

This week is International Open Access Week with universities around the world taking stock of the emergence of open access as a critical part of research and innovation.  The basic principle behind open access is to facilitate public access to research, particularly research funded by taxpayers.  This can be achieved by publishing in an open access journal or by simply posting a copy of the research online.

In recent years, many countries have implemented legislative mandates that require researchers who accept public grants to make their published research results freely available online within a reasonable time period.  While Canada has lagged, a growing number of funding agencies, including the Canadian Institutes of Health Research, the Canadian Cancer Society, and Genome Canada have adopted open access policies.

The result is unprecedented public access to cutting-edge research.  There are now more than 4,000 peer-reviewed open access academic journals worldwide and more than 30 million articles freely available through Scientific Commons. An estimated 20 percent of the world’s medical literature is openly accessible within two years of first publication. Nearly ten percent is immediately available.

Do-Not-Call List Undermined By Loopholes in the Law

This month marks the one-year anniversary of the launch of Canada's do-not-call list.  Over the past 12 months, millions of Canadians have registered their numbers on the list and filed hundreds of thousands of complaints with the Canadian Radio-television and Telecommunications Commission, which is tasked with enforcing the law.

While the CRTC has found itself subject to considerable criticism for investigating only a small percentage of complaints and levying just a handful of fines for do-not-call violations, a review of tens of thousands of complaints obtained under the Access to Information Act reveals a potentially bigger problem.  

Many of Canada's best-known companies have been the target of frequent complaints, yet are not subject to investigation due to the large number of exceptions found in the law.  This has led to genuine dismay, with many people using a comment section in the complaint form to register their disappointment with the do-not-call list.

Canadian Anti-Spam Deal Far From a Done Deal

The introduction last spring of Bill C-27 - the Electronic Commerce Protection Act - represented the culmination of years of effort to address concerns that Canada is rapidly emerging as a spam haven.  Industry Minister Tony Clement’s anti-spam bill has steadily made its way through the legislative process, with the Standing Committee on Industry likely to conduct its final "clause by clause" review over the next two weeks.

Although support for anti-spam legislation would seemingly be uncontroversial, various business groups have mounted a spirited attack against the bill, claiming requirements to obtain to user consent before sending commercial email will create new barriers to doing business online.  The Conservative MPs on the committee have remained supportive of the bill, yet Liberal MPs have expressed growing concern about some of the bill’s provisions.

A close examination reveals that the bill sets reasonable limits for online marketing consistent with laws found in countries such as Australia, New Zealand, and Japan.  In fact, there are four major caveats to the consent requirement.

First, the bill includes a business-to-business exception so that businesses that send commercial email to other businesses are immediately exempt from the need to obtain consent.

Van Loan's Misleading Claims: Case For Lawful Access Not Closed

The push for new Internet surveillance capabilities - dubbed the "lawful access" initiative - dates back to 1999, when government officials began crafting proposals to institute new surveillance technologies within Canadian networks along with additional legal powers to access surveillance and subscriber information.  Over the past decade, lawful access has stalled despite public consultations, bills that have died on the order paper, and even a promise from former public safety minister Stockwell Day to avoid mandatory disclosure of personal information without court oversight.

Last June, current Public Safety Minister Peter Van Loan tabled the latest lawful access legislative package.  Much like its predecessors, the bill establishes new surveillance requirements for Internet service providers. In an about-face from the Day commitment however, it also features mandatory disclosure of customer information, including name, address, IP address, and email address upon request and without court oversight.

CIRA Should Give Out Domain Names, Not Door Prizes

The Canadian Internet Registration Authority, the agency that administers the dot-ca domain name, holds its annual general meeting in Toronto later this week.  Attendees will vie for door prizes and hear from executives about the growing number of Canadian domain name registrations, the robust financial health of the organization, and a small list of corporate by-law amendments.  Yet as CIRA moves into its second decade, the promise of a leading Internet voice in Canada and an active, engaged membership is gradually fading away.

Engaging Canadians was viewed as a top priority during the organization’s early years (I was a board member from 2001-06).  Meetings were held in communities across the country in an effort to educate Canadians on the dot-ca and to encourage participation in Internet governance issues.  The annual general meeting was webcast to ensure all Canadians could attend, even if only virtually.

While CIRA never managed to become a household name – many registrants simply want their website or email to work without regard for bigger policy issues – it could count on hundreds of Canadians to vote for the board of directors, participate in consultations, and show their interest in how Canada’s domain name space should be managed.

Privacy Law Emerges as Latest Canadian Export

The recent Canadian privacy case involving Facebook attracted international attention as the world's leading social networking site agreed to implement a series of changes that will affect 250 million users.  While the case is widely viewed as a significant victory for Canadian privacy, the issue might never have been addressed but for a second, little-noticed privacy decision released two weeks later.

In December 2004, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa filed a complaint with the Privacy Commissioner of Canada against U.S.-based Abika.com, an online data broker that collects, uses and discloses the personal information of Canadians (I am an adviser to CIPPIC but was not involved directly in the case).  The company offered a wide range of search services on individuals, purporting to dig up everything from past police reports to consumer preferences.

A year later, the Commissioner ruled that she could not investigate the complaint.  The company refused to respond to questions and the Commissioner was of the view that there was no mechanism to further pursue the case given jurisdictional limits of Canadian privacy law.

Has Someone Hit the Delete Key on Canada's Digitization Strategy?

Digitization of books has become synonymous over the past year with the Google Book Search project and the class action lawsuit launched in response to the search giant's efforts to create an Internet-based library consisting of millions of books.  While the digitizing continues, the legal drama reaches an important stage tomorrow morning when a court in New York will close third-party submissions supporting or criticizing the settlement.

The attention on Google Book Search is understandable, yet it has distracted from the broader question of government supported digitization efforts. Many countries have not been content to leave the digitization of their culture and heritage to Google, instead embarking on plans to create their own digital libraries.  

Canada was once thought to be part of this group - national digitization working groups were established and a strategy seemed imminent - yet plans have languished to the point that it feels as if someone has hit the delete key on the prospect of a comprehensive Canadian digital library.

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