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Technology law column by Michael Geist

Patent Reform Would Ease Path For AIDS Medicines To Africa

For many years, countries such as Canada have avoided the uncomfortable truth that millions are dying in the developing world due partly to legal barriers that render access to medicines unaffordable.  In 2003, the World Trade Organization reached agreement designed to facilitate the export of medicines by opening the door to a compulsory licence for developing countries without manufacturing capabilities.

Canada became an early adopter of the agreement by reforming the Patent Act to allow the Canadian Commissioner of Patents to issue a compulsory licence to a pharmaceutical company to allow for the manufacture and export of an eligible drug or medical device to an eligible importing country. Titled the Jean Chretien Pledge to Africa Act after the former Prime Minister’s commitment to development support in Africa, the reforms were touted as an illustration of Canadian leadership on development issues.  

CIRA at a Crossroads

The ten-year anniversary of an important milestone in the history of the Internet in Canada passed last month without any notice.  On March 11, 1999, the Government of Canada wrote to the fledgling Canadian Internet Registration Authority (CIRA) to establish the terms under which the new not-for-profit organization would manage the dot-ca domain name space.  The Government articulated a vision of the dot-ca domain as a "key public resource" and called on CIRA to act in an open and transparent manner.

More than a million domain name registrations later, many Canadians take the dot-ca for granted.  The system works and this bottoms-up creation - it was the (far smaller) Canadian Internet community that worked with the government to develop CIRA - is widely viewed as a success. CIRA has held multiple elections, hosted meetings from coast to coast, eased the prices and complexity of registering domain names, and generally worked to maintain public trust by treating its administration of the dot-ca as a public trust.

While there is much to celebrate, in recent months the organization has shown a troubling yet unmistakable shift toward prioritizing commercial gain over the public interest.  

Battle Over Anti-Counterfeiting Treaty Heats Up

Next week, the Department of Foreign Affairs will conduct one of the stranger consultations in recent memory.  Officials have invited roughly 70 stakeholder groups to discuss an international intellectual property treaty that the U.S. regards as a national security secret and about which the only public substantive information has come from a series of unofficial leaks.

Since then-Minister David Emerson announced Canada’s participation in the Anti-Counterfeiting Trade Agreement negotiations in October 2007, the ACTA has been dogged by controversy over the near-total lack of transparency.  Early negotiations were held in secret locations with each participating country (Canada, the U.S., the European Union, Japan, and Australia among them) offering nearly-identical cryptic press releases that did little more than fuel public concern.

The participating countries conducted four major negotiation sessions in 2008 and though the first session of 2009 was postponed at the request of the U.S. (which was busy transitioning to a new president), the negotiations are set to resume later this spring.

Songwriters Bid To Legalize File Sharing Gets a Rewrite

In November 2007, the Songwriters Association of Canada shocked the music industry and many Canadians by proposing the full legalization of music file sharing.  The SAC proposal was based on the premise that file sharing was not going away, that lawsuits against file sharers do more harm than good, and that the continued emphasis on using digital locks to control copying has been a complete failure.   

In the view of thousands of Canadian songwriters, the better way forward was to encourage music sharing by monetizing it.  The SAC proposal envisioned a levy (five dollars per month was floated as a possibility) that would be used to compensate creators for the sharing.  In return, Canadians would be entitled to freely share music for non-commercial purposes.

The reaction to the SAC proposal was generally critical.  The recording industry rejected it out-of-hand, arguing that it violated international copyright law.  Consumer groups were also skeptical, noting that a mandatory universal levy would result in payments by non-music sharers, who would effectively subsidize those sharing music.

Canadian Privacy Rights Buried in the Fine Print

Scott McNealy, the former CEO of Sun Microsystems, has achieved considerable notoriety for having warned Internet users ten years ago that "you have no privacy, get over it." Recent headlines suggest that the Ontario courts have adopted those sentiments, as two recent decisions involving the disclosure of subscriber information by Internet service providers confirmed that revealing personal information to law enforcement without a warrant is permitted under Canadian privacy law.

While some view these cases as providing conclusive evidence that Canadians enjoy little privacy in identifying data such as customer name and address information, a closer look at the decisions and industry practices reveal that the issue is not entirely settled.

Both recent decisions involved disclosures of customer name and address information in suspected child pornography cases.  In one case, R. v. Wilson, the court ruled that the data was not particularly sensitive and that the customer had no reasonable expectation of privacy.  Moreover, the customer had agreed to Bell Canada’s Privacy Policy that permits the disclosure of personal information in certain circumstances.

Storm Clouds Ahead for Canadian Wireless World

Public frustration over the state of the Canadian wireless industry has generally focused on consumer-oriented concerns including pricey data plans, misleading system access fees, and text message charge policies.  Given the consumer focus, the effect on Canadian business is rarely discussed.  That is set to change as one of Canada’s leading media companies has stepped forward with explosive allegations about how the wireless industry is engaged in practices that stifle innovation by privileging access or controlling content on their networks.

The claims can be found in a recent submission to the Canadian Radio-television and Telecommunications Commission by Pelmorex Media, the owner of the Weather Network in Canada.  While Pelmorex is not a household name, the Weather Network's websites rank at the top of Canadian media websites for online visitors.

Little New in New Media Hearings

The Canadian Radio-television and Telecommunications Commission new media hearings take a break over the next few days before concluding with a steady stream of appearances by Internet service providers, who are certain to argue next week against the imposition of a new ISP tax to fund the creation of Canadian new media.  The break is much needed, as the past two weeks have been huge disappointment with submissions short on specifics, long on rhetoric, and filled with inconsistencies.

While there is plenty of blame to go around, criticism must start with the CRTC, since it set the tone for the hearings with a series of conditions that make little sense.  The Commission tried to limit the hearings to "new media broadcasting," explicitly excluding issues such as net neutrality and the potential regulation of user generated and non-commercial content.

Yet each of these distinctions cause the entire new media hearing edifice to crumble.  In the case of net neutrality, Chair Konrad von Finckenstein opened the hearings by stating that he could not see a connection between new media broadcasting and network management.

Digital Transition Opens Door to 'WiFi on Steriods'

Canada finds itself lagging more than two years behind the United States in the transition from analog to digital television broadcasting, a process that could leave millions of Canadians without access to over-the-air television signals.  While the elimination of "free TV" would spark outrage in many communities, the most harmful effect of the slow migration will be felt in the competitiveness of Canadian telecommunications, not broadcasting.  

The link between the digital television transition and telecommunications stems from the freed-up spectrum that will become available as broadcasters abandon their analog transmissions. This spectrum - known as the 700 MhZ spectrum - opens up a host of possibilities for new innovation, competitors, and open Internet access.

The 700 MhZ spectrum will lead to another spectrum auction that could open the door to further entrants into the Canadian wireless market.  In fact, some speculate that some would-be bidders stayed out of the most recent AWS spectrum auction (which raised over $4 billion in revenue for the government), in the hope of grabbing some of the MhZ spectrum since it is viewed as technically superior (for example, it more easily penetrates walls, making it ideal for delivering wireless high-speed Internet services).

Blurry Outlook for Canadian Digital TV Transition

Starting this week, hundreds of U.S. television stations plan to shut down their analog broadcasts as they complete the transition to digital over-the-air broadcasts.  While the U.S. had planned for a nationwide change this month, last minute legislation has delayed the full mandatory transition until mid-June.

The U.S. experience to date highlights what should be a major concern for Canada - the transition from analog to digital broadcasts is years behind the U.S. with virtually no industry or government support.  This sounds like a purely technical issue, yet the policy implications of that transition will have a profound effect on both the national broadcast and telecom landscape. 

The basic notion of the transition is fairly straightforward.  For decades, Canadian broadcasters have used spectrum to transmit over-the-air analog broadcast signals. Before the widespread use of cable and satellite, many Canadians used antennae - "rabbit ears"- to access those broadcast signals.  Today, approximately ten percent of Canadians still rely on over-the-air television signals.

Peeking Behind Canada's Copyright Complaint Against China at the WTO

Late last month, the World Trade Organization released a much-anticipated decision involving a U.S.-led complaint against China over its intellectual property laws.  Canada was among a number of countries that participated in the case, which alleged that China’s domestic laws, border measures, and criminal penalties for intellectual property violations do not comply with its international treaty obligations.

On April 25, 2007, David Emerson, then the Minister of International Trade, issued a press release announcing Canada's participation, stating that it was "based on concerns expressed by Canadian stakeholders on a range of issues related to China's intellectual property rights regime." Yet according to dozens of internal Canadian government documents obtained under the Access to Information Act, Canadian officials, unable to amass credible evidence of harm to Canadian interests, harboured significant doubts about the wisdom of joining the case and ultimately did so only under the weight of great pressure from the United States.

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