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Technology law column by Michael Geist

Canada Post Plays Grinch in Takedown Fight

Late last year, Canada Post and the Public Service Alliance of Canada became embroiled in a heated strike action over sick pay benefits. In the midst of the dispute, several PSAC members took direct aim at Canada Post CEO Moya Greene, recording a short parody video titled "The Greench." The video, which was posted on YouTube, adapted the well-known Dr. Seuss tune "You’re a Mean One, Mr. Grinch" to criticize Greene and the company.

While the creation of a protest video is not particularly noteworthy, what followed soon after is.  Just as the video began to attract some attention, YouTube removed it after receiving a complaint from Canada Post alleging that the video violated the company’s copyright.

The Music Industry's Digital Reversal

Canadians focused on hockey success and economic doom-and-gloom over the past month may have missed a series of events that suggest a dramatic shift for the recording industry.  For much of the past decade, the industry has relied on three pillars to combat peer-to-peer file sharing - lawsuits, locks, and legislation.  

 

Crystal Ball Gazing at the Coming Year in Tech Law

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 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.

The Letters of the Law: The Year in Canadian Technology Law and Policy

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. 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.

CRTC New Media Regulation Proposals Take Shape

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."

Internet Video Goes To the Movies

In recent years, much of the interest in online video has focused on its effects on mainstream or conventional television - the emergence of a "clip culture," where popular segments of television programs draw larger audiences on websites like YouTube than on conventional television. The shift of conventional broadcast to the Internet is remarkable, but it misses important developments for longer form video.

For example, last week I released Why Copyright? Canadian Voices on Copyright Law, a 47-minute documentary on copyright reform. Produced with filmmaker and law student Daniel Albahary, the documentary examines why copyright has emerged as an important issue and features a wide range of Canadian voices including Nettwerk Record's Terry McBride, Hamilton Tiger Cats owner Bob Young, Toronto-based science fiction author Karl Schroeder, and Privacy Commissioner of Canada Jennifer Stoddart.

While this is hardly the first film about copyright, the release was noteworthy since it occurred exclusively online and in the process highlighted the potential for independent creators to use the power of Internet distribution to level the cultural playing field.  

Lawless Canada Emerging as a Spam Haven

Last month, a California court awarded social networking giant Facebook US$873 million in damages arising from the activities of a single spamming organization.  The decision garnered headlines in Canada not only for the lofty award, but because of an important Canadian connection - the spammer targeted in the lawsuit operates out of Montreal.
 

 While Facebook acknowledges that it is unlikely to recover much of the awarded damages, the case has placed the spotlight on Canada’s ongoing failure to address its spam problem by introducing long overdue anti-spam legislation.  The fact that organizations are forced to use U.S. courts and laws to deal with Canadian spammers points to an inconvenient truth - Canadian anti-spam laws are woefully inadequate and we are rapidly emerging as a haven for spammers eager exploit the weak legal framework.

 Canada initially recognized the need to address the spam issue with formation in 2004 of a National Task Force on Spam that included a broad cross-section of marketers, telecom companies, and public policy groups (I was a member of the task force).  The Task Force unanimously recommended that the government introduce anti-spam legislation.

CRTC Decision Not the Final Word on Net Neutrality

The Canadian Radio-television and Telecommunications Commission last week issued its much-anticipated ruling on the legality of Internet throttling, a controversial practice employed by some Internet service providers that reduces speeds for certain applications.  The Canadian Association of Internet Providers, which represents smaller, independent ISPs, filed a complaint with the CRTC over Bell's practices earlier this year.

The Commission denied CAIP's complaint, ruling that Bell treated all of its customers - both retail and wholesale - in the same throttled manner.  

There is little doubt that Bell comes out the winner in this round as the CRTC sided with the company on most key issues.  It agreed that there was network congestion due to peer-to-peer usage and that Bell was therefore acting reasonably by implementing some network management techniques to address the congestion concerns.  Moreover, it rejected fears that Bell's actions were motivated by a desire to undermine competition and it concluded that the mere act of reducing Internet speeds does not rise to the level of controlling content (a violation of the Telecommunications Act).

"Enhanced" Licence May Enhance Privacy, Security Risks

This week the Ontario legislature will resume debate on Bill 85, proposed legislation that could lead to the creation of an "enhanced drivers licence" in the province (referred to as an EDL).  The introduction of the new licence – which will also be available as a photo card for non-drivers - has received little public attention despite the urgent concerns expressed by privacy commissioners and civil liberties groups.  Indeed, barring an unlikely change of plans, the legislation could be passed within a matter of days.

The primary impetus behind the EDL is the increased border security measures between Canada and the United States.  As the U.S. increased identity card requirements for entry into the country (passports are now required at most border crossings), government officials in both countries have sought to develop an alternative to the passport.

The EDL, which will embed new technologies including a radio frequency identification device (RFID) within the card, is the outcome of that work.  While the enhanced card will be optional, it is expected that many residents may pay the extra fee for the EDL.  Moreover, Ontarians will not be alone in this regard as other provinces and U.S. states have similar plans.

New Media Requires New Thinking for Cultural Policy

Canadian cultural policy has long relied on two levers to promote the development and market success of Canadian content.  First, regulators require broadcasters and cable companies to allocate a portion of their revenues to help support the creation of new Canadian content.  Second, that content is granted preferential treatment through minimum "Cancon" requirements for both television and radio broadcasting.  

While these approaches may have worked for conventional broadcasting, the big question in the Canadian Radio-television and Telecommunications forthcoming hearings on new media is whether they can be applied to the Internet.  

Canadian cultural groups, the biggest proponents (and beneficiaries) of this policy approach argue that similar mechanisms can be adapted to the Internet by requiring Internet service providers to hand over a portion of their subscriber revenues for the creation of new media content. ISPs unsurprisingly oppose the proposal, arguing that an Internet tax is inherently unfair since it forces all subscribers to fund content in which they may have little interest.  Moreover, they note that such a scheme may also be illegal since it applies the Broadcasting Act to telecommunications activities.   

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