Island Linux Bits and Bytes of Technology

Technology law and policy is notoriously unpredictable and crystal ball gazing in Canada this year is particularly challenging given the current political and economic uncertainty.  With that caveat, my weekly technology law column (Toronto Star version, homepage version) provides my best guess for the coming months includes the following:

January.  The Copyright Board of Canada releases its much-anticipated decision on the copyright royalties payable by primary and secondary schools across Canada.  The board reduces the fees based on the Supreme Court of Canada’s liberal interpretation of fair dealing, Canada's version of fair use.  At the end of the month, the government's budget includes the expected stimulus package for the auto and forestry sectors, but there is little for the culture and technology sectors.

February. The Canadian Radio-television and Telecommunications Commission kicks off a busy year with its new media hearings.  The positions are by-now well known - cultural groups seek the creation of a new ISP levy and increased regulation of Internet-based broadcasting, while most broadcasters and telecommunications companies support the status quo.

March.  Secret negotiations on the Anti-Counterfeiting Trade Agreement resume in Morocco.  Calls for greater transparency fall on deaf ears as the U.S., Japan, and South Korea urge participants to keep the treaty under wraps and to conclude the draft treaty by year-end.

April.  The U.S. Trade Representative releases its annual Special 301 Report on the status of global intellectual property laws.  Canada once again finds itself in good company as it (along with dozens of other countries) is criticized for failing to pass new copyright reform legislation. 

May.  The Privacy Commissioner of Canada releases high-profile privacy findings involving deep packet inspection by Canadian Internet service providers and the privacy policies of leading social networks.  The Commissioner identifies several key concerns and urges the companies to alter their practices.

June.  Industry Minister Tony Clement introduces new copyright reform legislation.  The bill is modeled after the failed Bill C-61; however, it includes several key changes that respond to some of the criticisms that emerged last year.  The month is a busy one for Clement, who expresses frustration with the state of the Canadian wireless market and the slow transition to digital television by Canadian broadcasters.

July.  The CRTC holds several days of hearings on network neutrality.  Telecommunications companies argue that reasonable network management practices should not be regulated and that traffic shaping should be permitted.  A broad coalition of consumer groups, independent ISPs, technology companies, and cultural groups urge the Commission to establish net neutrality ground rules.

August.  Several Canadian provinces follow the Ontario and British Columbia lead by tabling legislation to allow for the creation of "enhanced" drivers licences that embed RFID technologies.  The proposals raise the ire of the privacy and security experts across the country.  Canadian provinces also continue to the push toward universal high speed Internet access services, with the majority of provinces unveiling plans to guarantee access to rural communities.

September.  The federal government follows through on its 2008 campaign promise by introducing anti-spam legislation.  The bill extends beyond spam by targeting phishing, spyware, and other Internet harms.  The one-year anniversary of the do-not-call list also arrives - millions of Canadians have by-now registered their numbers, yet the volume of unwanted telemarketing calls has barely declined.

October. The CRTC releases its new media decision, which rejects the ISP tax proposal, but opens the door to Canadian content requirements for Internet-based broadcasting by regulated broadcasters.  Meanwhile, Industry Canada releases a consultation paper on its next round of spectrum auctions.

November.  Canadians head back to voting booths for the fourth federal election in six years.  The election call kills the copyright and anti-spam bills, which do not advance through the Parliamentary process.  

December.  The CRTC releases its net neutrality decision, ruling that Canadian ISPs should provide subscribers with more transparent disclosures about their network management practices, but the Commission stops short of blocking Internet throttling.  The decision stands in stark contrast to developments in the U.S., where Congress passes a net neutrality bill backed by President Obama.  Meanwhile, ACTA negotiators use the year's fourth negotiation session to conclude a draft treaty, setting the stage for a major battle over the treaty in 2010.

Wallace McLean offers his annual public domain day list of authors whose work entered into the public domain in Canada on January 1st.

The Province of New Brunswick has announced plans to provide province-wide broadband connectivity within the next 18 months.

Cyndee Todgham Cherniak reports that Canada Border Services opened mail addressed to her office at Lang Michener, raising signficant privacy and client confidentiality concerns.

The Canadian Private Copying Collective and retailer Best Buy have resolved a dispute over private copying levies, with the CPCC receiving nearly $1 million in compensation.

There was rarely a dull moment over the past twelve months in law and technology with no shortage of legislative proposals, controversial court cases, and very public battles over the future of the Internet in Canada.  My final technology law column (Toronto Star version, homepage version) takes a look back at 2008 from A to Z:

A is for the Anti-Counterfeiting Trade Agreement, the still-secret treaty being negotiated by a handful of countries (including Canada) that has generated fears of iPod-searching border guards.  A new round of negotiations were recently concluded in Europe with further discussions planned for 2009.

B is for Bell, which emerged as the big winner in a dispute at the Canadian Radio-television and Telecommunications Commission over the legality of "traffic shaping" by Internet service providers.  A follow-up hearing on net neutrality is set for July 2009.

C is for Canadian Internet Registration Authority, which manages the dot-ca domain.  CIRA launched a revised WHOIS framework in 2008 that establishes some restrictions on the public accessibility of domain name registrant information.

D is for the good news/bad news experience with the Do-Not-Call list.  The good news was that the list, which took effect in September, garnered millions of registrations within weeks.  The bad news was that the registrations were soon followed by thousands of complaints from frustrated Canadians who experienced little reduction in unwanted telemarketing calls.

E is for eBay, which lost a Federal Court of Appeal decision on whether the online auction site could be compelled to reveal the identity of Canadian "powersellers" to the Canada Revenue Agency.

F is for FACIL, a Quebec group that supports open source software.  It filed a lawsuit against the Quebec government over its restrictive tendering processes.

G is for Adam Guerbuez, a Montreal-based spammer who was ordered to pay Facebook $873 million in damages, the largest-ever award under U.S. anti-spam legislation.
 
H is for Canadian Heritage, which was under fire all year over planned culture cuts and proposed legislation to grant the Minister of Canadian Heritage veto power over funding for "objectionable" films.

I is for the iPhone, which made its Canadian debut and was the impetus for a heated debate over the competitiveness of Canadian wireless pricing.

J is for Jim Prentice, who as Industry Minister presided over the tabling of controversial copyright reform legislation and the auction of new spectrum for wireless services that unexpectedly generated more than $4 billion in revenue.

K is for Konrad von Finckenstein, the CRTC chair who, in an exceptionally busy year, introduced the do-not-call list and began to deal with net neutrality, the future of broadcasting, and new media regulation.

L is for the enhanced licences that will be introduced in the Province of Ontario following the passage this year of enabling legislation.  The new licences raised both privacy and security concerns.

M is for Professor Richard Moon, the University of Windsor law professor who released a report on the Canadian Human Rights Act at the request of the Human Rights Commission.  Moon recommended that a provision extending the law to the Internet be dropped.

N is for Net neutrality, which emerged as a mainstream issue in 2008 with a private members bill, a public rally on Parliament Hill that attracted hundreds of participants, and a commitment to hearings at the CRTC.  

O is for the Online pharmaceutical industry, which faced the prospect of shutting down in Manitoba following the introduction of new rules restricting the practice.

P is for Pickup Pal, the ride sharing service that was forced to change its Ontario operations after Trentway-Wagar, an Ontario bus company, filed a complaint with the Ontario Transportation Board over the legality of the service.

Q is for Quebec Torrent, the BitTorrent search site that folded in the face of a lawsuit by several groups.  The suit was one of several involving Canadian-based torrent sites.

R is for Ryerson University, which attracted considerable attention over a threat to expel a student for establishing a Facebook study group in contravention of a professor’s policy.

S is for SOCAN, which lost a request at the Copyright Board of Canada for the application of a new levy for music available on websites such as Facebook and Google.

T is for text messages, which emerged as a surprisingly hot topic when several wireless carriers imposed a fifteen cent fee on receipt of the messages for some subscribers.

U is for unsolicited commercial email, which languished as a legislative priority, though Senator Yoine Goldstein grew tired of the delays and introduced his own anti-spam bill.

V is for the vote swapping websites that popped up during the federal election. Elections Canada ruled that the sites were legal.
 
W is for the Wikimedia Foundation (the operator of the popular Wikipedia site), which won an important legal battle over cyber-libel when a B.C. court ruled that merely linking to content did not amount to re-publication.

X is for anonymizing technologies, such as Pshiphon, which was developed at the University of Toronto.  These technologies attracted global attention as several countries escalated their Internet censorship activities.

Y is for Yahoo, one of many corporate giants who formed the Business Coalition for Balanced Copyright to argue for a fair approach to copyright reform in Canada.

Z is for Zantac.ca, one of several Canadian domain name dispute resolution cases involving high-profile brands.  Others included domains referencing the blackberry, Burberry, Enterprise Rent-a-Car, and Staples.

The Wall Street Journal reports that the RIAA has decided to abandon its strategy of suing individual file sharers.  The music lobby group has sued more than 35,000 people since 2003.  Instead, the RIAA plans to focus on a three-strikes and you're out approach with ISPs that would involve terminating subscriber access after three warnings.

The Department of Foreign Affairs has issued a release that provides an update on the most recent round of ACTA negotiations (the release will be mirrored by other countries).  It reports that governments met last week in Paris to continue ACTA negotiations.  In addition to the three issues addressed at earlier meetings (international cooperation, enforcement practices and institutional issues, as well as criminal enforcement), Internet issues were now added to the mix. 

The release notes that governments are aware of the concerns with the lack of transparency in the process and plan to discuss the matter further (presumably when they next meet in Morocco in March 2009).  Transparency does not require discussion, it requires action.  This is quite clearly an intellectual property agreement (not a trade agreement) with negotiations that are conducted in secret to avoid the spotlight and possible objections from developing countries and civil society.  The time has come for Canada to stand up and say that this is wrong and that it will not continue with the process until it meets appropriate standards of transparency.

Sam Trosow points to a new advisory from the Canadian Association of University Teachers on fair dealing.  The advisory does a terrific job of explaining the breadth and limits of fair dealing in Canada.  More importantly, it urges action -- legislative action to preserve the Supreme Court of Canada's analysis in CCH and education action to actively exercise their fair dealing rights.

The Electronic Frontier Foundation has produced a terrific short video highlighting its critically important work over the past twelve months.

Singapore has enacted new copyright reforms that include the right for teachers to circumvent digital locks on movies for classroom use and for the visually-disabled to circumvent to allow the read-aloud function to work.

B.C. police have arrested a man engaged in the production and sale of infringing DVDs.

Another day, another study showing Canada is a leading source of spam.  This time, it's a Cisco study that finds that on a per capita basis, Canada is single largest source of spam among the top 16 countries surveyed worldwide.  The study says that Canada is the fourth largest source in absolute terms, trailing only the United States, Turkey, and Russia.

This may come as old news to some, but a new site (unaffiliated with the Obama transition team), is asking the public to identify their top issues for the new Obama Chief Technology Officer. The top three issues so far: net neutrality, privacy, and repealing the DMCA.

The Globe and Mail reports that the Ontario Court of Appeal has upheld a $40,000 defamation award arising from Internet postings.

My weekly technology law column (Toronto Star version, homepage version) reprises last week's post on the submissions to the CRTC as part of the new media hearing. The Canadian Radio-television and Telecommunications Commission new media hearings are not scheduled to begin until mid-February, yet they have already attracted more than their fair share of controversy.  With talk of imposing a tax on Internet service providers to fund Canadian content or the imposition new licensing and Canadian content requirements, the outcome could dramatically reshape the Internet in Canada.


The deadline for formal submissions closed ten days ago, leaving Commission officials to spend the holidays wading through thousands of pages from broadcasters, telecommunications companies, creator groups, and a handful of individual Canadians who took the time to voice their views.

At the heart of the submissions are two competing visions of the Internet and new media in Canada.  One side - supported by telecom companies, broadcasters, and several industry groups - maintains that the CRTC's 1999 decision to take a hands-off approach to the Internet has largely worked.  They argue that new media and the Internet have flourished and that the Commission should heed the adage that "if ain't broke, don't fix it."

These groups have supplemented their policy arguments with legal ones, filing multiple legal opinions, including one from former Supreme Court of Canada Justice Frank Iacobucci, that cast doubt on the CRTC's legal power to impose certain forms of new Internet regulation.

The counterargument comes from creator groups such as ACTRA, SOCAN, the Canadian Film and Television Production Association, and the Writers Guild of Canada, who believe that the 1999 decision was mistake and that the CRTC should take this opportunity to reverse it.

Should the Commission agree that the hands-off the Internet approach should be revisited, the major question then turns to what should be done.  There are two approaches on the table - one that focuses on creating an Internet broadcasting framework that matches conventional broadcasting regulation and the second that emphasizes promoting Canadian content by ensuring equal access to it.

The first approach starts with rescinding the 1999 new media exception and introducing new regulatory requirements for the broadcast of new media on the Internet.  This would effectively treat Internet-based broadcasting in the same manner as conventional broadcasting.

Those promoting a regulatory approach propose a range of measures. For example, SOCAN calls for the introduction of a minimum of 51 percent Canadian content requirements for Canadian commercial websites.  ACTRA argues that the Commission should licence new media undertakings, arguing that "the Commission should also require that those who are making programs available from Canada, through the Internet or to mobile receiving devices, for viewing at a time and place chosen by the user be licensed."  In fact, ACTRA maintains that the definition of Internet broadcasting should be expansively interpreted to even include user generated content, which could turn thousands of Canadians into regulated broadcasters.

A handful of broadcasters also support new regulation.  The CBC maintains that "new media content aggregators" should be regulated, while Sirius Satellite Radio, itself a beneficiary of modified Canadian content rules, now argues that Internet radio delivered to mobile devices should be regulated.

In addition to regulatory and licensing requirements, many (though not all) of these same groups support the imposition of a new tax on Internet service providers to be used to fund the creation of Canadian new media. ACTRA assumes the lead role in this regard, seeking three percent of ISP broadband revenues and 0.6 percent of wireless service provider revenues.  Telecommunications companies, business groups, and the Competition Bureau unsurprisingly oppose the ISP tax plan.

Alternatively, many of the submissions provide the Commission with a different approach that avoids licensing, new taxes, and new media regulation.  Instead, these submissions point to the need for net neutrality - the assurance that Canadian new media can be accessed on an equal footing with foreign and conventional content.  Supporters of a net neutrality approach to new media include ACTRA, the Canadian Independent Record Production Association, the Canadian Music Publishers Association, the Canadian Conference of the Arts, Maple Leafs Sports and Entertainment, Score Media, the Documentary Organization of Canada, and the Canadian Association of Internet Providers.

The new media hearings are still a couple of months away, yet the likely debate has now come into sharper focus with Internet regulation, an ISP tax, and net neutrality emerging as the three key battleground issues.

Precedent, a Canadian legal publication, features a cover story on the Canadian copyfight.

Heather Morrison has a great post chronicling the year in open access.

Canadian Association of Broadcasters President Glenn O'Farrell has announced that he's stepping down early next year.

The CBC reports that the CRTC has ordered Canadian telecommunications companies to offer the same Internet speeds to smaller wholesale customers as they themselves sell on a retail basis.  The case arises from a complaint by Cybersurf, which argued that the DSL service it was able to offer its retail customers were far slower than that offered by telcos such as Bell.  Bell and Telus opposed the application to mandate that they provide Cybersurf with the same speeds, claiming that such an order was inconsistent with the market-oriented policy direction and that it would create disincentives to investing in upgraded networks.  The Commission sided with Cybersurf, ordering Bell, Telus and other DSL providers to offer wholesale providers the same speeds as they offer to their own customers.